Attorney General Eric Holder Jr. will not face a grand jury investigation into whether he should be charged with criminal contempt of Congress for his role in responding to a congressional subpoena, the Justice Department said in a letter to House Speaker John Boehner.
James Cole, the deputy attorney general, said in the letter that the department determined Holder's response to the subpoena for documents about the Fast and Furious gun-tracking probe was not a crime. The letter (PDF), which was sent Thursday night, said DOJ will not present the case to a grand jury "or take any other action to prosecute the Attorney General."
That Holder wasn't likely to face a criminal charge was expected. The House is expected to file a civil suit to try to force disclosure of certain documents. Iowa Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, wants to know whether U.S. Attorney Ronald Machen Jr. even saw the House criminal contempt citation before rejecting it.
Grassley today sent a letter to Machen that it was impossible for him to have "undertaken any such independent assessment" of the citation before turning it down. Grassley said Boehner's office received the letter before the citation was transmitted to Machen.
"Before you have even received the citation, before you have even had a chance to understand the scope of the documents and the privilege claim at issue, the Deputy Attorney General has already announced the decision of 'the Department' not to proceed as required by the contempt statute," Grassley wrote.
Grassley, in the letter, asked Machen whether he'd had any communication with Cole or other senior DOJ officials about the criminal contempt citation. Grassley asked Machen to address, among other things, whether he made an independent assessment of the merits of a criminal case.
A spokesman for Machen, William Miller, declined to comment about Grassley's letter.
Cole's letter to Boehner mirrors the one former Attorney General Michael Mukasey wrote to then-Speaker Nancy Pelosi in 2008 when the department declined to prosecute Harriet Miers and Joshua Bolten for criminal contempt. The Mukasey letter is here.
The Democrat-controlled House Judiciary Committee wanted documents from Miers, the former White House counsel, about the firing of a handful of U.S. attorneys. Lawyers for the House filed suit in Washington federal district court. That case was ultimately settled.
Cole and Mukasey both noted in their letters that the president had asserted executive privilege to keep documents secret from congressional investigators.
“Across administrations of both political parties, the longstanding position of the Department of Justice has been and remains that we will not prosecute an Executive Branch official under the contempt of Congress statute for withholding subpoenaed documents pursuant to a presidential assertion of executive privilege,” Cole said.
Theodore Olson, the former assistant attorney general for the DOJ Office of Legal Counsel, said in a memo in 1984 that “the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an Executive Branch official who asserts the President’s claim of executive privilege.”