The House of Representative voted yesterday to hold Attorney General (AG) Eric Holder in contempt of Congress for refusal to turn over documents in connection with the ATF  "Fast and Furious"  "gun-walking" operation by a vote of 255-67.  Holder has claimed that these documents are exempt from Congressional scrutiny under the "Executive Privilege"    (EP) doctrine.

Fast and Furious:  This operation, begun under the Bush Administration in 2006,  was intended to identify "straw buyers" of guns on behalf of Mexican drug smugglers.  About 2,000 guns were sold to the suspects in hopes that they would lead investigators to the master drug lords of Mexico.  However,  the ATF  investigators lost track of many of these guns, and some were used to kill a US Border Patrol Officer and about 200 Mexicans. AG Holder testified about the program before a congressional committee and provided  thousands of documents, but withheld others on the basis of  EP since they were subpoenaed in October of 2011.

Executive Privilege (EP): Although the Constitution does not provide for either Congressional subpoenas or  Executive Privilege, conflicts between Congress and the President over testimony and presidential documents  is nearly as old as the Republic itself:  the first case was when President George Washington refused to provide some documents to the House, but did give them  to the Senate.  President Dwight Eisenhower invoked EP 44 times between 1954 and 1960, beginning when a Senate subcommittee headed by Sen. Joseph R McCarthy demanded Defense Department documents. (1)

When President Richard Nixon withheld tapes and other  documents related to the  Watergate case,  the US Supreme Court  ruled (2) that EP existed, but did not pertain to those items .(2) Subsequently President Bill Clinton invoked EP to cover up the Lewinsky case and  President George W Bush invoked it to prevent Karl Rove from testifying on the firing of US attorneys.

Contempt of Congress:  Since 1857 it has been a federal crime to refuse to testify or provide subpoenaed documents to congressional committees. (3)  Those convicted of violating the law are subject to  imprisonment for one to twelve moths. The law has no exemption for EP.

The Fast and Furious documents  that Holder refused to produce certainly include information embarrassing to the Department of Justice and the Obama White House.  But more serious is the possibility that they also include proof that Holder lied under oath in his Congressional testimony, which would subject him to impeachment and prosecution for perjury.  As long as these papers remain secret, we will not know.  Even President Obama may not know!

My suggestion is that   the President  order all the withheld documents to be delivered to the Office of the White House Counsel for evaluation.  If the Counsel concludes that they implicate any federal appointees or staff in misconduct in public office, those people ought to be fired. ( If they prove that Holder lied under oath, he should be the first to go.)  Then all the documents should be provided to the House of Representatives in accordance with the  subpoena, in exchange for dropping the contempt citation against Holder.  References to informers or others helping the  ATF should be eliminated for their own safety.

Although this is a reasonable way to avoid a confrontation between the House and the White House, more likely  Obama will back Holder and he will not be prosecuted for contempt.  This could then become a scandal to be used for political gain  in the November election.

Gerald S Glazer

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(1) Wikipedia

(2) US v Nixon (418 US 713), 1974.

(3) US Code 192, Title 2.