The House Oversight and Government Reform Committee voted along party lines and approved a contempt of Congress report against Attorney General Eric Holder Jr. this afternoon, a rare step with the potential for battles on the House floor and in federal courts during a contentious election year.
The 23-17 vote ended almost four hours of speeches and debate about Holder’s response to subpoenas related to the botched Fast and Furious gun-trafficking operation that has been linked to the 2010 shooting death of Border Patrol Agent Brian Terry.
House Speaker John Boehner (R-Ohio) announced that, "while we had hoped it would not come to this," Holders' contempt report would go before the full House next week unless documents were turned over.
Republicans moved forward with the contempt case today even though the Department of Justice informed Chairman Darrell Issa (R-Calif.) that the White House had claimed executive privilege over the documents. That DOJ letter was delivered to Issa about 15 minutes before the hearing started this morning.
Attempts to work out a compromise over the documents sought by Issa and the House committee late Tuesday night fell short, with each side blaming the other. The hearing was rancorous and sharply partisan.
For hours, the committee’s Democrats accused the Republicans of turning the Fast and Furious probe into a political weapon, focusing on Holder’s response to the subpoena instead of the tactics used in the program.
The Republicans said the contempt vote was important to show that the Department of Justice can’t simply ignore subpoenas from Congress, particularly when guns from the program have been linked not just to Terry’s death, but possibly to the deaths of 300 Mexicans.
The last-minute assertion of presidential privilege injected uncertainty and chaos into hearing, but Issa did not find it enough reason to delay the vote, especially because the White House did not directly inform him or the committee.
It was the first time since Janet Reno in 1998 that an attorney general has faced a contempt of Congress related to a subpoena.
In a statement this afternoon, Holder described the contempt vote as "an extraordinary, unprecedented and entirely unnecessary action" that's intended to provoke conflict between Congress and the executive branch. He called it "untrue" that the department has not been responsive to congressional demands for information.
"This divisive action does not help us fix the problems that led to this operation or previous ones and it does nothing to make any of our law enforcement agents safer," Holder said in the statement. "It's an election-year tactic intended to distract attention — and, as a result — has deflected critical resources from fulfilling what remains my top priority at the Department of Justice: Protecting the American people."
After the vote, Issa urged Obama and Holder to release the documents and allow Congress to finish its investigation.
"The President's assertion of Executive Privilege this morning took us by surprise but did not alter the Committee's conclusion that documents had been inappropriately withheld," Issa said in a written statement. "Executive Privilege only applies to materials that directly pertain to communications with the President and his senior advisors. This assertion indicates that the White House’s role in Operation Fast and Furious and the response to whistleblower accusations has been greater than previously acknowledged."
The contempt report and the executive privilege each set up what could be historic court battles.
First, the courts could be asked to decide whether President Barack Obama can claim these documents as privileged. Rep. Jim Sensenbrenner (R-Wis.), former Chair of the House Judiciary Committee, released a memo detailing what Republicans might argue.
"The President’s assertion of executive privilege is an illegal attempt to avoid responsibility for the Department’s misconduct," Sensenbrenner's said in the statement.
The White House said former President George W. Bush asserted executive privilege six times, former President Bill Clinton 14 times, and both "protected the same category of documents we’re protecting today."
"Given the economic challenges facing the country, we believe that House Republicans should work with the rest of Congress and the President to create more jobs, not more political theater," White House Communications Director Dan Pfeiffer said in a written statement.
And second, if the full House moves forward and finds Holder in contempt then it would petition a court to force DOJ to turn over the documents. Both could be big distractions during an election year.
Mike Scarcella contributed to this report.