Everyone knew that House Republicans wanted to force a committee vote to hold Eric Holder in contempt of Congress—and that they had the votes to do it.
What nobody expected was that President Obama would invoke executive privilege minutes before the scheduled vote, raising the stakes to a full-blown constitutional clash.
The result was yet another war of words on the Hill, with Democrats closing ranks behind the attorney general, and his boss.
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The partisan standoff exploded into to a full-blown political showdown Wednesday when Republicans on the House Oversight Committee voted to hold Holder in contempt for failing to turn over thousands of subpoenaed documents related to the Fast and Furious gun walking operation. Minutes before the committee met, the White House asserted its executive privilege to keep the documents private, while House Speaker John Boehner announced that the full House will vote next week to cite Holder for contempt, a move that has never been taken against a sitting U.S. attorney general.
The dramatic turn of events came as the committee voted along party lines against Holder after a marathon six-hour hearing that devolved into a polarized slug fest, with Democrats accusing the GOP of conducting an election-year witch hunt against Holder and Republicans asking what the attorney general and president were trying to hide with Obama’s move to keep the missing documents privileged within the White House.
Rep. Ann Marie Buerkle, a freshman Republican who voted to hold Holder in contempt, called the White House’s assertion of executive privilege “sickening.”
“What I want to know is, what is he trying to hide?” she asked.
Later in the hearing, Rep. Elijah Cummings jumped to Holder’s defense, calling Holder’s decision to withhold documents an effort to protect the office of the attorney general, not to protect his own political hide, as Republicans implied again and again while they accused Holder of conducting a cover-up in the Fast and Furious investigation.
“What is he hiding?” Cummings asked. “I don’t think he’s hiding a damn thing.”
Wednesday’s fireworks were evidence that both Democrats and Republicans see the standoff as more politically damaging to the other side than to their own.
Boehner wasted no time taking the unprecedented step of scheduling a vote in the full House to cite Holder for contempt. Although Boehner had not been pushing the issue forward, rank and file GOP members have been clamoring to vote against Holder and the White House to show their conservative constituents they are holding the Obama administration’s feet to the fire on something. The Fast and Furious investigation has been a mainstay on conservative talk radio and blogs since 2010, when guns from the botched gun walking operation were found at the scene of the murder of an American Border Patrol agent.
“Citizens in my district are wondering why we have been so gracious in the time length that we have pursued this Fast and Furious issue,” Rep. Tim Walberg (R-Mich.) said. “Contrary to what the attorney general seems to think, complying with the committee’s subpoena is not optional.”
For her part, Democratic leader Nancy Pelosi essentially called next week’s House vote a waste of time. “I think it’s just the irresponsibility of the Republicans. We want jobs. Why are they spending this time doing this?”
A senior Democratic House leadership aide compared the Holder investigation to the debt ceiling debate from last year as an example of Republican overreach. “It’s another manufactured crisis,” the aide said. “It’s a witch hunt and it really undermines the House as an institution.”
The investigation into Operation Fast and Furious began 16 months ago when House and Senate Republicans launched an inquiry into the botched probe and Republican Rep. Darrell Issa subpoenaed Holder to turn over all of the documents related to the operation. Although the Department of Justice turned over more than 7,000 pages of materials, Holder withheld tens of thousands more, on the basis that they related to ongoing prosecutions or internal White House deliberations.
Tuesday night, as the committee vote on contempt came closer, there was an effort at some old-fashioned backroom horse-trading. Holder met with the leadership and pushed for a deal. “We made what we thought was a reasonable offer and they did not approve,” a senior Justice Department official told The Daily Beast on condition of anonymity.
One key point of confusion is whether Republicans are now saying that invoking “executive privilege” implies that the White House was involved in the disputed communications with the DOJ. In other words, did the White House get involved with the more recent disputed documents? In a statement, Issa said “executive privilege only applies to materials that directly pertain to communications with the president and his senior advisers.”
Democrats and the Justice Department disagree. They argue that it is “executive branch” privilege, rather than a presidential privilege. Rep. John Tierney (D-Mass.) told The Daily Beast that Republicans have previously agreed the privilege can apply to departments in the executive branch. He cited Michael Mukasey, an attorney general under George W. Bush, who he said had argued that “a president can invoke executive privilege for those in his administration that need to be protected from public disclosure so he can have a full and vigorous debate.”
If the full House votes next week to hold the attorney general in contempt for withholding the documents, Holder’s case would be referred to the U.S. Attorney for the District of Columbia, Ronald Machen, an Obama appointee who once worked for Holder when Holder himself served as the U.S. Attorney for the District.
But that is the point where constitutional law experts say the proceedings against Holder would likely die, not because of Machen’s relationship with Holder, but because no precedent exists for prosecuting an administration official when the White House has invoked executive privilege over the documents that would be necessary for a grand jury investigation.
Peter Shane, a law professor who studies the Constitutional separation of powers at Ohio State University, said House Republicans could potentially move to sue the administration in district court or subject Holder to its own civil arrest, but Shane called both scenarios extremely unlikely.
In a city as partisan as Washington, Holder’s political support on Capitol Hill is just as important as anything a grand jury or civil court might do in the future. By Wednesday night, it was clear that Holder has the full support of Congressional Democrats for now. Although Republicans have called for the attorney general to resign, no Democrat has come out against him. Instead, top Democrats have rallied to his side, defending him as working in good faith to give Issa what he can in a highly-charged political environment. With Democrats still in control of the Senate and supporting Obama, there is little more that House Republicans can do beyond next week’s vote to compel Holder or the president to do anything.
The unmistakable take away for the White House is that Democrats in the House and Senate are standing by Obama, a rare message of unity that the president has hardly gotten at any other point in his administration.
—The Daily Beast’s Daniel Stone contributed to this article.
