A U.S. House committee is scheduled to vote Wednesday on whether to hold Attorney General Eric Holder in contempt of Congress, the first such proceeding against the Justice Department’s head since 1998.
After a meeting with Holder on Tuesday in Washington that failed to produce a compromise, Rep. Darrell Issa, a California Republican who is chairman of the House Oversight and Government Reform panel, told reporters that a vote could still be averted if the Justice Department provides documents.
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“At this point, we simply do not have the documents we have repeatedly said we need to justify the postponement of a contempt vote in committee,” Issa said in a statement.
The contempt vote would be the latest escalation in a standoff that began last year between Republican lawmakers and Holder over Fast and Furious, a law enforcement operation involving the sale of guns that ended up in Mexico.
Dozens of Republican lawmakers have called on Holder to resign over his handling of probes into the gun operation and leaks of classified national security information. Republicans have also criticized how the Justice Department under Holder has prosecuted terror suspects and challenged state immigration and voting laws.
Holder said he offered to turn over the documents on condition that Issa give assurances that doing so would satisfy the subpoena. The Justice Department already has provided thousands of pages of documents, though not all of the materials Issa requested.
Issa said the panel must evaluate the documents to determine whether they comply with the subpoena.
“We need the documents to know whether or not he’s being responsive,” Issa said. If Holder turns them over before the committee meeting, Issa said he would be willing to delay the contempt vote while the panel evaluates the material.
A committee contempt vote would be the first step in a rarely used and drawn out process which is often resolved via negotiations rather than in court, said Michael Madigan, an attorney at Orrick, Herrington & Sutcliffe LLP in Washington who represents clients during congressional investigations.
If the committee approved the contempt citation, Republican leaders would still have to decide whether to hold a House floor vote and then refer the matter to the Justice Department for prosecution.
Then-House Speaker Newt Gingrich opted against a floor vote in 1998 when the oversight panel held Attorney General Janet Reno in contempt for withholding documents related to a campaign finance investigation.
The Justice Department didn’t pursue criminal contempt prosecutions in 2008 when the House held President George W. Bush’s chief of staff and a former White House counsel in contempt during a congressional investigation of federal prosecutor firings.
The House, controlled by Democrats at the time, filed a civil contempt suit. Bush’s former counsel, Harriet Miers, ultimately testified in private before the House Judiciary Committee a year later in a deal brokered by the Obama administration.
“It takes forever for that to work out,” said Carl Tobias, a professor at the University of Richmond law school, in a phone interview. “So part of it is how much does Issa want the documents or can he live with half a loaf?”
On June 7, House Speaker John Boehner said, “All options are on the table with regard to what may need to be done to hold the Department of Justice accountable.”
Tuesday, the speaker was asked if he was concerned that a House vote to cite Holder for contempt of Congress would detract from the Republican political message about job creation. “Our focus for the last 18 months has been on jobs and we’ve been relentless about it,” Boehner said. The speaker didn’t address the contempt issue.
Keeping attention focused on Holder’s Justice Department helps Republicans politically by reinforcing the idea that the Obama administration is ineffective and less transparent than promised, said John McLaughlin, a Republican pollster in Blauvelt, New York.
“He’s definitely become a liability to the administration,” McLaughlin said.
Holder has politicized the Justice Department by pursuing cases challenging state immigration and voting laws designed to “curry favor” with Democratic constituencies, said Rep. Trey Gowdy, a South Carolina Republican.
“It’s calculated to help his boss’s re-election,” said Gowdy, who serves on both the House Judiciary Committee and Oversight panel.
Holder isn’t motivated by politics and is inevitably going to anger Republicans by making difficult decisions on voting rights, gay marriage and immigration, said Matthew Miller, who served as Holder’s spokesman at the Justice Department between 2009 and 2011.
“All of those are things that make Republicans’ heads spin and so in turn they come after him for it,” Miller said.
Every recent attorney general has become the target of the opposing party’s politically-motivated Congressional oversight, said Miller.
“Each side escalates it and each side responds when they’re in power,” Miller said.
Holder said the two sides were at an impasse because Issa wouldn’t give him “an indication that, if we provide the material, that would resolve the subpoena issue.”
“We are involved in political gamesmanship as opposed to trying to get the information,” Holder told reporters as he left Tuesday's meeting with Issa in the Capitol.
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The Justice Department offered to provide documents, a briefing explaining why others wouldn’t be included, and the ability to ask follow-up questions, Deputy Attorney General James Cole, who attended the meeting, said in a letter later sent to Issa.
“We had hoped that you shared our interest in bringing this matter to an amicable resolution and we regret that you rejected our extraordinary proposal to do so,” Cole said.
Criticism of Holder has intensified in recent weeks as Republicans called for an independent prosecutor to investigate leaks of classified information.
At least 115 House Republicans have signed a “no confidence” resolution, and two members of the Senate Judiciary Committee said he should resign.
Holder said he has no intention of stepping down even as he sounded a valedictory note when asked about his future plans at a June 12 Senate Judiciary Committee hearing.
“I’ve lost some. I’ve won more than I lost,” Holder said. “And I’m proud of the work that I’ve done."
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