Rep. Darrell Issa (R-Calif.): “In the AP [Associated Press] case you have appointed Ronald Machen, and I’m sure he is a fine U.S. attorney, but can he be considered to be independent when in fact when this Congress held you in contempt he was the individual who refused, on your orders, to prosecute the case? If he will obey your orders in not living up to a contempt of Congress, can we believe that he is in fact independent?”

Attorney General Eric H. Holder Jr.: “I did not order Mr. Machen not to do anything with regard to — I won’t characterize it — the contempt finding from this Congress. He made the determination about what he was going to do on his own.”

exchange on Capitol Hill, May 15, 2013

The fierce exchanges between Rep. Darrell Issa and Attorney General Eric H. Holder Jr. on Wednesday garnered a lot of attention, but there was also an interesting substantive point that was discussed: Did Ronald C. Machen Jr., the U.S. attorney for the District of Columbia, make his own decision regarding whether to prosecute Holder for criminal contempt of Congress?

Holder said Machen “made the determination.” What does the evidence show?


The Facts

Last June, President Obama invoked executive privilege to withhold documents related to the botched “Fast and Furious” gun operation, and the House of Representatives acted by citing Holder for criminal contempt of Congress. The Justice Department quickly responded by saying Holder would not be prosecuted, citing similar decisions by Justice Departments in Democratic and Republican administrations.

The notice of the DOJ decision, however, came in a June 28, 2012, letter from Deputy Attorney General James M. Cole. “Consistent with the uniform position and practice, the Department has determined that the Attorney General’s response to the subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime, and therefore the Department will not bring the congressional contempt citation before a grand jury,” Cole wrote.

Here’s the rub: The decision on whether to empanel a grand jury rested with Machen. But the letter from Cole came even before the House had transmitted the contempt resolution to Machen.

A June 29 letter (embedded below) sent by Sen. Charles E. Grassley (R-Iowa) makes clear how angry Republicans were that Machen appeared not to make his own determination. Grassley noted that under the statute, Machen’s “duty… shall be to bring the matter before a grand jury for its action.”

Grassley added:

This language is quite clear and simple to comprehend. It is not optional. Moreover, the law clearly assigns that duty to you and to no one else. It could have assigned the duty to the Attorney General or to the Deputy Attorney General or some other official. But, it does not. As for the ultimate decision to proceed with a prosecution after you have exercised your duty to present the matter to a grand jury, that decision is for the citizens empaneled in the grand jury, not for you or for the Deputy Attorney General or for “the Department” generally to make.


“It does not appear possible that you could have undertaken any such independent assessment,” Grassley continued.  “The Deputy Attorney General’s letter has put the cart before the horse.”

Cole, the deputy attorney general, then answered Grassley on July 16, saying he was responding because it raised department-wide issues that were best addressed not by an individual U.S. attorney. But he added that Machen “concurred” with the decision not to pursue the matter.

On July 26, House counsel Kerry W. Kircher demanded in a letter to know whether Machen actually concurred with the decision. On July 30, Machen responded (letter embedded below), saying that “I concur with the long-standing position of the Department of Justice.”

From this record, it is pretty clear that Machen did not make the decision on his own, as Holder asserted. Still, the response of the Justice Department should not have been a surprise, given that previous administrations, no matter what party, had taken the exact same position.

A Justice Department official, speaking on the condition of anonymity, said that officials had noted the same problem with Holder’s testimony while reviewing it on Thursday.

“The attorney general misspoke,” the official said, asserting that Holder did not participate in the department’s discussions on how to respond to the congressional action. “Since he had not been involved, he did not recall the details.”

The bottom line, the official said, is that the first part of Holder’s statement was correct (“I did not order Mr. Machen not to do anything”), but the second part (“he made the determination”) was wrong.

We are not sure how closely Holder reads the newspapers or watches the television news, but certainly Republican outrage at Cole’s response was widely reported.


The Pinocchio Test

As we have often noted, an admission of error is always welcomed. The attorney general has an obligation to be accurate, especially when testifying before Congress, but obviously mistakes can happen in impromptu remarks.

If Holder had not been involved in the discussions on how to handle the contempt citation, he should have made that clear. One can understand his irritation at what he clearly regards as empty political theater, but he should have said that he had no idea how Machen made his decision because he, as the subject of the contempt vote, decided to remove himself from the process. Instead, he asserted something that was incorrect.

Ultimately, Machen wrote to Congress that he concurred in the decision, but we have no idea, at this point, whether he felt any pressure to conform to the department’s policy. Holder certainly should not have left the obviously incorrect impression that he knew otherwise. But, by admitting error, he just skates by with Two Pinocchios.

Two Pinocchios

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