With Barr in crosshairs, a look back at last time Congress cited contempt

Why We Wrote This

The U.S. House of Representatives is moving toward holding the attorney general in contempt over refusal to release a sensitive document. Seven years ago, the same thing happened. Looking back offers a different – and deeper – look at today’s news.

J. Scott Applewhite/AP/File
Former Attorney General Eric Holder takes questions from reporters at the Capitol, in Washington, Jan. 3, 2018. The GOP-led House voted in 2012 to hold Mr. Holder in contempt of Congress for withholding documents. It took six years for that issue to be resolved.

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It was a battle that played out in slow motion. The U.S. House of Representatives voted to hold the attorney general in contempt of Congress over withheld documents. The president intervened. The Justice Department handed over the documents in question – six years later. That battle between the GOP-led House and then-Attorney General Eric Holder began on June 28, 2012, and wasn’t resolved until March 7, 2018.

In a moment of political déjà vu, the House is once again considering holding the attorney general in contempt. This time, it’s House Democrats who are threatening to hold Attorney General William Barr in contempt over the unredacted version of special counsel Robert Mueller’s report.

The question now is whether Democrats should take the same road Republicans did in 2012. A contempt citation followed by a lawsuit would show their voters they took steps to combat the administration’s stonewalling. In the Holder case, the legislative branch eventually triumphed. But is it worthwhile if the process takes so long that by the time the case is resolved, the reason for oversight is moot?

“Even if they ultimately win in court, it doesn’t result in effective congressional oversight,” says Cornell law professor Josh Chafetz.

On June 28, 2012, the U.S. House of Representatives voted to hold then-Attorney General Eric Holder in contempt of Congress over withholding documents relating to Operation Fast and Furious, a failed Obama-era gun sting program.

Six years, two attorneys general, and one White House turnover later, the Department of Justice finally announced that it would release the documents to Congress.

That’s right, six years. A few months after the contempt citation against Mr. Holder, the GOP-led House Oversight Committee filed a civil lawsuit against him over withholding the documents. The case then wound its way through federal court, with each side filing motions and appeals. It wasn’t until March 7, 2018, that the Justice Department – by then under the Trump administration – agreed to hand over the documents.

Now the tables have turned, and it’s House Democrats who are threatening to hold Attorney General William Barr in contempt over the unredacted version of special counsel Robert Mueller’s report. On Wednesday, President Donald Trump asserted executive privilege over the report and its underlying documents.

The question now is whether or not Democrats should take the same road Republicans did in 2012. A contempt citation followed by a lawsuit would make headlines and show their voters they took steps to combat the administration’s stonewalling. And in the Holder case, the legislative branch eventually triumphed, because they did get the documents they wanted.

But is it still worthwhile if the process takes so long that by the time the case is resolved, the reason for oversight is moot?

In the Holder case, if the point was to oversee the Justice Department under President Barack Obama, says Cornell University law professor Josh Chafetz, then letting the fight drag into the Trump administration kind of undercuts the argument.

“Even if they ultimately win in court, it doesn’t result in effective congressional oversight,” he says.

The Holder contempt citation came as a result of Fast and Furious, a 2009 operation led by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that allowed federal agents to “walk” guns into Mexico to trace where they wound up. The scheme failed. More than 2,000 guns made their way to Mexican drug gangs, and two were linked to the killing of a U.S. Border Patrol agent in 2010.

The DOJ at first denied signing off on the operation, but later walked back its statement, saying instead that the program was “fundamentally flawed.”

The House Oversight Committee brought in Mr. Holder to testify in February of 2012. By June, House Republicans were calling on him to resign. Mr. Obama then claimed executive privilege over some of the documents the committee wanted, and weeks later, the House voted mostly along party lines to hold Mr. Holder in contempt.

Then, as now, the move made sense politically: 2012 was an election year, and there was plenty of political hay to be made of a public push to censure the attorney general of an opposing administration. Democrats today likely have a similar calculus in mind, with 2020 around the corner.

There are some key differences, though. Republicans today say there was a case for action against Mr. Holder – that he had tried to cover up federal agents’ misdeeds in a botched operation. “Bill Barr’s following the law, and what’s his reward? Democrats are going to hold him in contempt,” said ranking member Jim Jordan of Ohio at the House Judiciary Committee hearing on Wednesday. The committee voted 24-16 Wednesday to recommend the House hold Mr. Barr in contempt. The full House will now vote on whether or not to cite him.

Others point out that Mr. Obama did not adopt the kind of blanket dismissal of congressional oversight that the Trump administration has so far adopted. Although both Mr. Obama and President George W. Bush, like other administrations before them, fought Congress on investigations, they for the most part picked their battles. By contrast, Mr. Trump’s “rejection of Congress’ legitimate oversight function threatens to undermine this tenuous, but critical, check on presidential power,” Doug Kriner, professor of government at Cornell, said in a statement.

But the drawn-out conflict over the Fast and Furious documents did little to prove lawmakers could meaningfully check the executive branch when it mattered, says Professor Chafetz, who recently wrote a book on the separation of powers. “They cost themselves power vis-a-vis the executive by deciding to go to court.”

There are other ways to give congressional oversight efforts some bite, says Kevin Kosar, congressional scholar and vice president for policy at the R Street Institute in Washington. They could hold up confirmations for appointees or block bills that administration officials have an interest in. Even starting impeachment hearings could move the needle in Congress’s favor, even if there’s no expectation the president would ever be convicted.

“There are a lot of possibilities for those who want to put the energy in to try to change the behavior of the executive branch or any individual within it,” Mr. Kosar says. “But it requires grit. You have to use the tools at your disposal, stay consistent, and stay on them.”

Some House Democrats seem to be taking the lesson to heart. On Tuesday, House Oversight Committee Chairman Elijah Cummings of Maryland sent letters threatening to dock the salaries of Trump administration officials who block ongoing committee investigations.

“The Government Accountability Office has reported to the Committee in the past when an agency official has violated this provision by preventing agency staff from being interviewed by Congress, and a portion of that official’s salary was ordered to be returned to the federal government,” Congressman Cummings wrote.

“Congress ought to be thinking about, ‘What are the institutional [options] that are best for us?’” Professor Chafetz says. “Going to court is one step in that political game, but we shouldn’t think it’s this obviously right step.”

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