On any other day, voting to hold the attorney general in both civil and criminal contempt would have been the top story of the day. But June 28 was no ordinary day.
Why did the House bother with a vote on civil contempt after it held him in criminal contempt? Conservative legal gurus explain to me that a civil-contempt finding theoretically can be enforced not by a U.S. attorney (a Justice Department employee who won’t pursue a case against his boss), as in the case of criminal contempt, but by an attorney hired by the House.
One former Justice Department lawyer cautioned, however, on making this into a prolonged court battle. It wouldn’t get threshed out for years, certainly not before the election. He tells me, “Congress can and should pause and reflect on how it will enforce its own contempt power, including appropriations riders, especially appropriations riders that punish the attorney general in a series of steps until he turns over the docs.” He explains, “Separation of powers works best when each branch uses their own powers to maximum advantage. I just hate it when members of Congress who have the power jump to the courts.” What can the House do on its own? “A rider that cuts the attorney general’s personal staff that is being used to engage in stonewalling,” is one suggestion.
In the wake of the Obamacare ruling, conservatives should begin to think twice and even three times before seeking resolution of political conflicts in the courts. They are all too often simply not up to the task.
As for Holder, he and the White House are behaving as if release of the documents would be a political calamity. If there’s not much there, the administration should promptly make a deal, turn over the bulk of the documents and move on. It is noteworthy that nearly 17 Democrats crossed over to vote with the Republicans on criminal contempt and 21 on the civil contempt process, a sign this is no longer merely a partisan affair.
The only reason most Americans got to hear about “Operation Fast and Furious” was because of the standoff on documents. It’d be smart for President Obama to nip this controversy in the bud — unless, of course, there’s a smoking gun in there.