Slowing Down 'Fast and Furious'

06/25/2012 06:22 pm ET | Updated Aug 25, 2012
  • Alan B. Morrison Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law

The House of Representatives is about to vote to cite Attorney General Eric Holder for contempt over his refusal to turn over Department of Justice records regarding a failed effort to stop the flow of guns into Mexico. It is doing so at a pace that one is tempted to call "Fast and Furious" if the name were not already taken. Viewed from the outside, this is a situation where it would be in everyone's interest for the House not to vote on the proposed contempt citation, if the committee really wants to see the relevant documents and not just get into an election year fight with the administration.

Let's start with where there seems to be, or at least should be, agreement if the temperature were lowered a little bit. Congress has a legitimate interest in investigating both the failed operation, including the roles of various department officials and the ATF, as well as Department's initial response that contained serious factual mis-statements. In conducting that investigation, Congress does not have to accept whatever the department provides as being all that it is entitled to receive, but can at least insist upon a fairly detailed explanation as to why certain categories of relevant documents are not being provided.

On the other side, the department has documents that it is forbidden by law from turning over, even if it wanted to do so. In this case those might include grand jury minutes, information obtained from wiretaps or other forms of surveillance, and personnel records of individual employees. Second, there appear to be ongoing criminal investigations and perhaps others relating to potential discipline against some of those responsible for these problems. As to at least many of those documents, the issue may be one of timing -- later not now -- rather than whether the committee will get them at all. Third, there are certainly internal memoranda, discussing various policy options of a kind that agencies in all administrations are very reluctant to make available because of the potentially chilling effect that doing so would have on high officials seeking candid advice from others. Last, only the president can invoke executive privilege, which provides some protection from it being over-used. That does not mean that the president has to have been involved for him to invoke the privilege, nor is the privilege limited to matters that reach the White House. The president cannot, in the words of the Constitution, "take Care that the Laws be faithfully executed" all by himself. He needs subordinates, now very large agencies, and they must have at least some of protections that the president would have if he were doing the work himself, instead of through those he has appointed to their positions.

In the current situation, the committee majority believes that the Attorney General is withholding important documents, for which the privilege has not been properly invoked. Without knowing what is in the documents, or in most cases even who wrote them to whom and on what subject, that is a hunch, although one that may have some truth to it, given the tendency of every administration to deny requests of this kind, as well as for much more routine information. And the Committee's unwillingness to accept the Attorney General's assurance that he has given them everything to which they are entitled is hardly surprising.

The Attorney General actually knows what is in the documents, at least in a general sense, and so far there is nothing to suggest that he or his immediate staff is involved in any wrongdoing, beyond what has already been revealed. Moreover, he has turned over 80,000 pages to the department's inspector general, who is supposed to file his report fairly soon, at which time it may be possible to release more documents, even if that report does not satisfy the committee. Nor is it reasonable to insist that the department prepare a log for each document, with a sufficient description to enable the committee to assess its privileged status, unless Congress thinks the department should stop much of the other work its lawyers are doing to take on that task. Nonetheless, and even abiding by the presumption that General Holder is acting in good faith does not mean that he can or should be the final judge on whether the privilege has been properly invoked for all of these documents.

What should happen now, assuming that the committee really wants the key documents and does not simply want a fight in an election year? Voting a criminal contempt citation against the Attorney General may make the House majority feel good, but it would only be a symbolic act. Surely, no one thinks that the House will try to arrest the Attorney General and put him in the House jail. The House has no authority to bring a criminal contempt prosecution, and the person who does -- the U.S. Attorney for the District of Columbia -- works for General Holder and so is not a likely candidate to file such a case. Impeachment is a possibility, but that is a long path, fraught with political difficulties, and it would surely not speed up production of the documents. Besides, criminal contempt is a sanction available for willful disregard of the rights of another, not for situations like this where a Cabinet officer has been told by the President not to make the documents available to Congress because they are legally and perhaps constitutionally privileged.

The House could do what the House under the Democrats did in 2008 when the White House directed Harriet Miers, Joshua Bolden, and Karl Rove not to respond to subpoenas regarding the Judiciary Committee's investigation into the allegedly political firing of ten U.S. Attorneys: file a civil suit and ask the court to decide the legal issue of whether the privilege was properly invoked. That prior suit rejected the blanket claim of privilege to refuse even to show up, but it did not produce the testimony and documents until much time had passed. But at least that path would be clearly appropriate, it would recognize the House's right to have the claim of privilege evaluated by an independent person whose regular job includes assessing the validity of various claims of privilege, and it would force the Attorney General to be quite specific in his privilege claims.

There is another alternative: recognize that both sides have some merit to their positions, that the courts should only resolve dispute between the branches as a last resort, and that there must be some individual -- respected by both sides, with the relevant experience -- who could decide the competing claims quickly and quietly, if not perfectly. Retired federal judges, former White House counsels, or former Attorneys General or other high ranking Justice Department officials would all fit the job description. That seems a far better resolution than the Fast and Furious one toward which the House is heading at this time.