House Republicans have been threatening Eric Holder with a contempt citation for weeks. But even if he does not turn over information about a controversial gun-tracking operation, the attorney general is unlikely to be sent to jail or suffer serious penalties.
The full House would have to adopt any resolution that the Oversight and Government Reform Committee approved. After that, Republican leaders would still be left with three imperfect legal options with which to proceed.
One option, considered extremely unlikely, would allow House leaders to order the Sergeant-at-Arms to arrest and imprison Holder until he complies with the chamber’s requests for information about the “Fast and Furious” operation, though not beyond the end of the legislative session, according to a Congressional Research Service report in May.
The report called that option “long dormant,” having not been used by either chamber since 1935, and no doubt it would be politically explosive.
Another option, the one Oversight and Government Reform Chairman Darrell Issa (R-Calif.) is pursuing in his investigation of the gun operation, would be to ask the Justice Department to prosecute its own attorney general. Under an 1857 statute that Issa has invoked in a draft contempt citation he has circulated in his committee, Holder would be subject to a misdemeanor prosecution, a fine of up to $1,000 and imprisonment of up to 12 months. The Justice Department, however, is unlikely to agree to prosecute its leader.
The third path is the likeliest, but some Republicans will undoubtedly find it deficient. It would allow the House to file a civil lawsuit to compel Holder to turn over information related to the Fast and Furious operation, in which the Justice Department allowed guns to be trafficked into Mexico in order to trace them to Mexican drug cartels.
Holder, however, could claim executive privilege, and it would then be up to the court to decide whether that claim is valid in the context of the gun-smuggling operation.
No Congressional committee has held an executive branch official in contempt of Congress since July 2008, when the Democrat-led House Judiciary Committee found Karl Rove, the former adviser to President George W. Bush, in contempt over the alleged politicization of U.S. attorneys’ offices.
The resolution was never taken up by the full House, though two other Bush officials, former counsel Harriet E. Miers and former Chief of Staff Joshua B. Bolten, were held in contempt by the chamber earlier in 2008, also in connection with the U.S. attorneys scandal.
After Miers and Bolten were found in contempt by the Democrat-led House in February 2008, House leaders asked the Justice Department to prosecute them. Then-Attorney General Michael Mukasey refused, and Democrats turned to the courts to try to obtain more information from the two aides.
A trial judge sided with the House, but the dispute eventually subsided as the Bush administration left office and the Obama administration took over.