Fights between Congress and the executive branch over access to information are a staple of American politics. Every president will prefer less disclosure about the messy internal processes of his administration. Congressional investigators suspecting scandal prefer more. In the end, some accommodation short of a constitutional crisis is usually achieved.
The government’s “gun-walking” program would be considered a scandal in any administration, involving 2,000 loose firearms and a dead Border Patrol agent. But an accommodation with congressional investigators has not been reached. The balance of powers has become a showdown. And the main reason is Attorney General Eric Holder.
In a February 2011 letter to Congress, the Justice Department denied any knowledge of “Operation Fast and Furious.” During May congressional testimony, Holder claimed that he had only recently learned of the matter. Both letter and testimony turned out to be false. Holder’s top aides had reviewed wiretapping applications containing specific details. Holder had received memos referencing the operation. Congress had been left under a false impression for nine months.
The Justice Department’s response to this disclosure was to fight further disclosures — permitting investigation into the original program but not into the misstatements and corrections that followed. Holder has absurdly claimed credit for providing 7,600 pages (about 8 percent) of the material investigators have requested, as though the problem might not be found on Page 7,601.
Any Justice Department would defend its prerogatives. But this one has also exhausted its credibility. False statements have given way to transparent obstruction. Eric Holder treated Congress with contempt long before it considered citing him for it.
“I take pride in being careful, not intemperate,” Sen. John Cornyn (R-Tex.), a former state Supreme Court judge, told me. “But I’m just fed up.” He is particularly offended by the lack of accountability. “There were 2,000 weapons that walked. Who knows how many more agents are at risk? Yet when I asked if it happened in Texas, I got no answer. Another stonewall.” These events, says Cornyn, “raise a question: What does it take to get fired in Eric Holder’s Justice Department?”
Cornyn has called for Holder’s resignation. Unlike the legal determination of contempt, this is a cumulative judgment. Holder began his tenure by supporting a special prosecutor to investigate enhanced interrogation by CIA agents, even though career prosecutors found insufficient evidence for charges — leading seven former CIA directors to denounce his assault on the institution. The attorney general proposed a New York civilian trial that would have given Khalid Sheik Mohammed a forum to embrace martyrdom and encourage violence — leading to a revolt of New York Democratic politicians and the removal of the case from Holder’s direct authority. His handling of the Fast and Furious case was botched from the start — requiring President Obama to assert executive privilege to cover a trail of incompetence and forcing Democratic members of Congress to rally in the cause of opacity and mediocrity.
The problem is not primarily a matter of ideology. Holder is the critic of enhanced interrogation who defends the use of killer drones against U.S. citizens. He is the enemy of indefinite detention at Guantanamo Bay prison who has institutionalized indefinite detention at Guantanamo Bay prison. His views seem to conform exactly to the contours of the president’s political requirements at any given moment. “Like a cushion,” David Lloyd George is reputed to have said of one opponent, “he always bore the impress of the last man who sat on him.”
Yet this does not stop the lecturing. Unlike his congressional detractors, Holder was not “scared” of what Mohammed would say at trial. He prefers not to “cower.” He says his critics lack “confidence in the American system of justice.” It is Eric Holder’s distinctive contribution to the American political system: self-righteousness without the inconvenience of principle.
“The supreme arrogance, the lack of accountability,” says Cornyn, “are driving people up the wall. . . . Is he going to be the chief law enforcement officer of the United States or the political arm of the administration? Every time Eric Holder has had a choice to make, he has made the political choice, not the one grounded in a reasonable interpretation of the law.”
This presents an immediate, practical challenge. Holder’s appointment of two prosecutors — one an Obama campaign donor — to investigate administration national security leaks is discredited before it begins. Which points to an immediate, practical need: an attorney general who inspires more trust than contempt.