Government & Constitution

What’s next for Attorney General Eric Holder?

What’s next for Attorney General Eric Holder?

Congress held Attorney General Eric Holder in both civil and criminal contempt yesterday, in historic bipartisan votes, for his refusal to provide subpoenaed documents in the Fast and Furious investigation.  This has never happened before.  So what happens next?

The first consequence will be that the last media outlets trying to protect the Obama Administration by refusing to report on the worst scandal in Justice Department history will be obliged to mention it, in considerably more detail than they would like.  They’ll try to bury the details as much as possible, and they will still absurdly describe Fast and Furious as a “botched sting operation,” but they’ll have to explain why Congress wants those documents, and how long they’ve been waiting.

(For the benefit of those still working to catch up with the well-informed conservative blogosphere on this story, Fast and Furious was not a “sting operation.”  In a sting operation, law enforcement makes a serious effort to arrest the purchasers of the illegal merchandise they have dangled as bait.  Absolutely zero effort was made to do this in Operation Fast and Furious.  The only reason some of the weapons have been recovered is that they’re turning up at crime scenes… not all of them in Mexico.)

Thus, there will be some political fallout from the contempt vote – even though it was, somewhat oddly, held in the shadow of the Supreme Court’s ObamaCare decision.  Public awareness of this story will grow, and that’s deadly, as everyone trying to ignore it understands.  Far less serious issues have become fatal to Washington careers due to saturation media coverage.

But what will become of Eric Holder?  Well, his citation for criminal contempt will be turned over to the U.S. Attorney for the District of Columbia, Ronald Machen.  The U.S. Attorney has considerable discretion over how he wants to proceed.  Technically he has a duty to convene a grand jury, but legal scholars are debating whether this would be “mandatory.”  Prosecutors are members of the executive branch, and we all know this particular executive branch doesn’t have much respect for the powers and privileges of the other two.

As for Machen, he has a long working relationship with Eric Holder, going back over a decade.  Here’s the beginning of a Washington Post profile from April 2010, after Machen was appointed to the District of Columbia position by President Barack Obama:

Then-U.S. Attorney Eric H. Holder sat on the sofa of his fifth-floor office 13 years ago and listened to the young lawyer tell him what needed to change: Prosecutors spent too much time in their offices and the courthouse, and not enough time in the community.

Ronald C. Machen told his future boss in a job interview that they needed to have a regular presence throughout the District by attending community forums, meetings in church basements, youth summits and the like. Waiting until a crime is committed, Holder recalled Machen telling him, was too late to develop relationships.

The Post also noted that “Machen has long admired Obama — since his days at Harvard Law School, where Obama already was a ‘legend,’ Machen said.  In 2003, Machen was one of the first people to donate to Obama’s U.S. Senate campaign, long before he emerged on the national political stage.”  He was also involved in vetting potential vice-presidential candidates for Obama.

Machen is young, just 42 years old, and black.  That shouldn’t matter a bit, but the Democrats have been laboring furiously to inject racial overtones into the Holder contempt drama.  House Minority Leader Nancy Pelosi (D-CA) openly stated last week, “They’re going after Eric Holder because he is supporting measures to overturn these voter suppression initiatives in the states.  This is no accident.  It is no coincidence.  I’m telling you, this is connected.  It is no accident. It is a decision and it is as clear as can be. It’s not only to monopolize his time, it’s to undermine his name. To undermine his name as he goes forward to protect and defend the Constitution of the United States.”

It requires no presumptions about Machen’s character to consider the nature and intensity of the pressure that will be directed against him to keep his boss out of the hot seat.  He was also recently named one of the lead prosecutors on the matter of classified information leaking from the Obama Administration into the media, so any time he devotes to prosecuting Holder for contempt will surely be portrayed as a distraction from a much more important task.

And if he does decide to move forward against Eric Holder, Machen can always be over-ridden by his boss, the Attorney General of the United States, Eric Holder.  Anyone who thinks Holder would be afraid to perpetrate such a political outrage hasn’t been watching the same Attorney General, and Administration, that I have.  Don’t make the mistake of believing the media would excoriate him for such a transparently corrupt exercise of power.  We’re not talking about a Republican Administration here.

What’s left, if Machen decides to ignore the contempt citations?  Congress could go with a special prosecutor, but those appear to have fallen out of favor these days.  Democrats may become very enthusiastic about them over the next four years, but for right now, they’re strongly opposed to the notion.  Senate Republicans have been pushing for a special prosecutor in the classified-leaks affair, and might not want to dilute that imperative by also insisting on a special prosecutor for Fast and Furious.

The most likely option for conscientious members of Congress – including the 17 House Democrats who voted to hold Eric Holder in criminal contempt, and the even larger contingent of 21 who voted to hold him in civil contempt – would be a civil suit, challenging the Administration’s exertion of executive privilege to keep those sizzling-hot Justice Department documents away from congressional investigators.

However, civil courts have historically “resolved” such actions by telling Congress and the Administration to return to the negotiating table and work things out between themselves.  An Associated Press analysis notes this has happened several times in the past, most pertinently when the Environmental Protection Agency under Ronald Reagan refused to hand over documents to Congress.  The court in that case merely called for “compromise and cooperation” between Congress and the Reagan Administration.

Such a ruling would help Eric Holder run out the clock, which appears to have been Obama Administration strategy in the Fast and Furious cover-up all along.  Contempt citations expire when a Congressional session concludes, and both Holder and Obama might well be gone in January anyway.  Even if Obama wins re-election, Holder has not yet committed to serving as Attorney General in a second term.  The game he’s been playing only has to drag on for a few more innings, one way or the other.

Robert Heyder, the cousin of slain U.S. Border Patrol Agent Brian Terry – who died under a hail of bullets from Fast and Furious guns – observed mournfully on Thursday that “given the Obama Administration’s steadfast refusal to level with the American people, Congress was left with no choice but to vote Mr. Holder in contempt.”  It’s hard to see how anything about the contempt citations will make the Obama Administration any less steadfast, unless they are the prelude to something even more dramatic.

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