If contempt of Congress (current polls show a whopping 17% approval) is a crime, we are a nation of criminals. That thought leapt to mind at the news that the House Oversight and Government Reform Committee, chaired by Representative Darrell Issa (R-CA.) has voted to ask the full House to hold Attorney General Eric Holder in contempt because of his refusal to turn over internal records relating to the administration’s response to the “Fast and Furious” gun-walking scandal in Arizona. In response to the prospect of that vote, Deputy Attorney General James M. Cole announced that President Obama had asserted executive privilege over the documents requested.
The cable news channels are crackling with faux outrage on both sides. Republicans are shocked that the Attorney General and the White House are covering up what must surely be dreadful misdeeds. Democrats are outraged at this partisan attempt to besmirch the administration by baselessly suggesting misconduct and a high-level cover-up.
Contempt of Congress is a lovely congressional custom: It wraps a petulant negotiating device in the trappings of a criminal accusation—one that will never come to trial. The bang of Issa’s gavel begins a process that will end with a whimper, either with a compromise between the administration and the committee, or with the lapse of the investigation at the end of this Congress in January.
Spectators can evaluate the inter-branch dispute by reading a very informative report issued in May by the Congressional Research Service (CRS) on “Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure.” The report makes clear that contempt of Congress is a serious charge when brought against private citizens, who can be fined or even imprisoned for refusing to comply with a committee subpoena.
But the consistent position of the Justice Department, whether under Republicans like William French Smith or Democrats like Janet Reno, has been that “Congress cannot, as a matter of statutory or constitutional law, invoke either its inherent contempt authority or the criminal contempt of Congress procedures against an executive branch official acting on instructions by the President to assert executive privilege in response to a congressional subpoena.” That pretty much dooms any attempt to enforce a contempt citation through the criminal process. Once voted, a citation must be forwarded to the U.S. Attorney for the District of Columbia for presentation to a grand jury. Instead, what happens is that the Attorney General (or in this case, as a matter of good form, probably a deputy) instructs the U.S. Attorney not to go forward, and the matter goes away (prosecutorial discretion, don’t you know).
Congress can also go directly to court to ask for a civil order declaring the official in contempt. But the CRS report notes that “relying on this mechanism to enforce a subpoena directed at an executive official may prove an inadequate means of protecting congressional prerogatives due to the time required to achieve a final, enforceable ruling in the case.” A case like this can take two years to finish the appeals process; the 112th Congress, and with it this House of Representatives, ceases to exist in January 2013.
What purpose, then, is served by the spectacle of a House Committee solemnly voting (along party lines) to ask the full House to resolve that “Mr. Holder be proceeded against in the manner and form provided by law”? Well, largely the opportunity to rehash the charges of cover-up, to suggest that a government official must have done something wrong, and to call the White House lawless. As far as I can tell, one’s belief in these charge is almost always precisely correlated with one’s party affiliation.
The most bruising battles against congressional committees were fought by the Reagan administration, whose Office of Legal Counsel produced memos setting forth executive privilege against Congress during a dispute over environmental policy, and the George W. Bush Administration, which refused to turn over documents relating to the apparently political firing of U.S. Attorneys.
Attempts to resolve these disputes flail their way in and out of court, but they are basically matters to be fought out between the branches and in the court of public opinion. As one Ford administration assistant attorney general told Congress in 1975, this sort of dispute is “the very type of ‘political question’ from which ... the courts [should] abstain.”
That official’s name was Antonin Scalia.