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Slow, Predictable Hearing on Fast and Furious

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The show trial of U.S. Attorney General Eric Holder on a citation of contempt of Congress for refusing to comply with a congressional subpoena is scheduled to climax on June 20. That’s when the investigating Oversight Committee has called for a vote on whether to move forward with a criminal contempt citation.

Holder may be guilty, but the hearing is a show trial — no one realistically expects a criminal prosecution or conviction. The improbability of that outcome is partly due to the procedure necessary for such a contempt charge to succeed: it is complex, and a guilty finding is ultimately subject to commutation or pardon by the president. In the last several decades, no one from the executive branch of the federal government has been successfully prosecuted. Moreover, convicting Holder is not the purpose of the hearing. The purpose is to embarrass the Obama administration and to force a conflict between Congress and the executive prior to the upcoming election.

Contempt of Congress — definition and procedure

A contempt of Congress citation refers to the “crime” of obstructing Congress or its committees. The charge usually arises in one of two circumstances: either a person has attempted to bribe a member of Congress; or a person refuses to comply with a subpoena. In past centuries, bribery was often the main cause. In modern times, it has usually been the refusal to comply, and the citation’s purpose has been to compel the production of documents or testimony.

The authority of Congress to issue contempt citations is not detailed in the U.S. Constitution; it is an implied power. There is substantial legal precedent, however. In Anderson v. Dunn (1821), the Supreme Court heard a case of attempted bribery of a congressman; at issue was whether Congress had the authority to hand down a contempt citation. The Supreme Court found that authority to be necessary to the proper functioning of Congress because, without it, Congress would be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.”

In modern times, contempt of Congress is defined by statute law, specifically by 2 U.S.C. § 192, “Refusal of witness to testify or produce papers.” Enacted in 1938, the statute reads,

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

Those who testify before Congress, however, generally retain due-process rights such as the right against self-incrimination.

The procedure for advancing a contempt of Congress citation brought by a committee (like the House Oversight Committee) is as follows: By a majority, the committee votes to move a criminal citation forward. Then the matter goes to the House or the Senate, depending on which chamber the committee belongs to, where it is debated in the same manner as any other resolution. If a majority in the chamber (the House in this case) approve moving forward again, then the citation is sent to the U.S. Attorney for the District of Columbia.

The law states that the attorney “shall” bring the citation to a grand jury, but the meaning of the word “shall” has been so interpreted in the past to render the matter optional. A case in point is the 1982 contempt charge against Reagan administration EPA official Anne Gorsuch, which was approved by the House.

Gorsuch cited “executive privilege” as a reason she withheld subpoenaed documents. (Gorsuch and the White House later abandoned this claim.) The attorney declined to prosecute. If Gorsuch had been prosecuted, however, Reagan could have commuted her sentence or pardoned any guilty finding.

Background of Holder’s citation

In September 2009, the Phoenix branch of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) — a division of the U.S. Justice Department (DOJ) — initiated “Operation Fast and Furious.” The Operation was aimed at combating the violence of Mexican drug cartels. In Fast and Furious, the DOJ and ATF deliberately allowed known or suspected gun smugglers to purchase thousands of weapons from licensed dealers in Arizona; no attempt was made to prevent the weapons from being smuggled into Mexico. The purpose was to place trackable weapons in the hands of drug cartel members so that their crimes could then be identified and prosecuted. In essence, the DOJ and ATF became accomplices in running guns to foreign drug cartels in the hope of shutting them down.

Fast and Furious encountered many obstacles. One was the strong resistance many ATF agents had to supplying guns to smugglers and drug dealers. Another was losing track of hundreds of firearms. And then two Fast and Furious weapons were linked to the December 2010 murder of Border Patrol agent Brian Terry. (For a timeline of Fast and Furious, click here.)

In February of 2011, USA Today reported that Senator Chuck Grassley, a senior member of the Senate Judiciary Committee, had written to the ATF to request a briefing. Why? He had been informed “that negligence by federal agents who failed to keep the firearms out of Mexico may have played a part in the Dec. 14 slaying of agent Brian Terry.”

From the beginning, ATF’s strategy seemed to be denial. USA Today quoted ATF spokesman Tom Mangan as stating that he was “not aware of any internal investigation that’s going on regarding Project Gunrunner [the umbrella project containing Fast and Furious].” At a Phoenix news conference, Bill Newell, the ATF agent in charge of Arizona, was asked outright whether his agents deliberately allowed guns into Mexico. He answered, “Hell, no.” According to a second letter to the ATF from Grassley, internal whistle blowers were being targeted by the agency.

Grassley’s second letter stated, in part,

As you may be aware, obstructing a Congressional investigation is a crime. Additionally, denying or interfering with employees’ rights to furnish information to Congress is also against the law. (PDF)

By March 2011, the controversy had wound its way up to the DOJ, headed by Eric Holder. He denied knowing of the operation but promised a full investigation. On March 22, in an interview with the Spanish-language network Univision, President Obama replied to a question about Fast and Furious, saying,

I did not authorize it. Eric Holder, the attorney general, did not authorize it. … There may be a situation here in which a serious mistake was made and if that’s the case, then we’ll find — find out and we’ll hold somebody accountable.

A few months later, on July 26, a staff report for Grassley stated,

The Department of Justice, and more specifically, Assistant Attorney General Lanny Breuer, clearly knew about Operation Fast and Furious. Further, the Department of Justice’s Office of Enforcement Operations (OEO) approved numerous of the wiretap applications in this case. These applications were signed on behalf of Assistant Attorney General Breuer in the spring of 2010.

A long process of congressional inquiry and DOJ denial or obfuscation ensued. It has led directly to the current committee hearings before which Holder now sits. The Oversight Committee accuses him of flagrantly ignoring an October subpoena to produce thousands of documents on Fast and Furious. Among other justifications for his refusal, Holder points to an ongoing investigation that would be compromised by releasing the documents. To date, it is a standoff.

But the standoff may well have been broken by the committee’s call for a vote. In response, Holder has stated a sudden willingness to reach a compromise — the details of which would need to be worked out.

Political purpose of the citation

It beggars belief that Holder could have known nothing about a three-year operation (2009–2011) that was as widespread and controversial as Fast and Furious. It is only slightly more credible that it was conducted without his approval and, perhaps, the approval of the president. But the Obama administration does not want even the possibility of its involvement to be discussed in the media before November.

The Obama administration cannot afford to have the citation proceed to the House and Senate. This is not merely because of the increased publicity of the ensuing debates. Fast and Furious caused enormous outrage among the American public, who objected to U.S. agents selling guns to Mexican smugglers and drug dealers. The unpopularity of the operation means that some congressional Democrats would almost certainly “cross over” to vote with Republicans in order to avoid alienating their own constituents. The investigation is an all-out vote loser for Obama. The further it goes, the more votes are lost.

Holder’s hearing is hardcore electoral politics. On FOX News (05/03/12), Judge Napolitano spoke about the original push for a citation: “The Republicans leaked internal documents today before members of the House … accusing the attorney general of committing crimes, and now they have to find a prosecutor willing to prosecute.” Napolitano was asked about the chances of Holder actually being prosecuted; he replied, “Zero.” Prosecution is not the goal; political advantage is.

The contempt hearing and possible citation serve yet another political purpose. For some time, the executive branch (Obama) has been flexing its muscle vis-à-vis the other two branches of government: the judiciary and the legislature. For example, Obama repeatedly denigrated the Supreme Court’s current consideration of the Affordable Health Care Act, or Obamacare, even suggesting that an unelected body has no right to adjudicate such a matter. Eventually, judicial backlash made Obama back down.

Similarly, his administration has sidestepped Congress on many important matters, such as requiring a declaration of war before attacking another nation.

The Republican-dominated committee interrogating Holder is in a no-lose situation. If a citation is moved forward, the negative publicity and defection of Democrats could help to tip the election to the right. If a compromise is reached, the Obama administration will be slapped into place and appear to be weak.

No wonder Holder is playing the race card. According to the New York Times, he stated of the hearing, “This is a way to get at the president because of the way I can be identified with him — both due to the nature of our relationship and, you know, the fact that we’re both African-American.” On Fast and Furious, the Obama administration may only have the race card left with which to negotiate.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).