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WASHINGTON, D.C. – Embattled Attorney General Eric Holder became a part of history yesterday when Congress voted 255 – 67 to hold him in contempt of Congress. This marked the first time in American history for a sitting Cabinet member to face such a charge.
After much theatrics with many Democrats walking out and refusing to vote, the House made it clear that it had enough of Holder stonewalling and falsification of facts in matters related to the Fast and Furious probe. Now many are asking, what next?
Typically, such a contempt finding by the legislative branch would prompt the local U.S. Attorney to move the case forward as a criminal matter. But, since no Attorney General has ever been held in contempt before by the full House, it is unclear if that duty is required or left to the discretion of the federal prosecutor.
Neither Congress’s contempt power (nor the President’s use of Executive Privilege) is covered in the Constitution. However, courts have long ruled it to be an implied power derived from the legislative branch’s constitutionally expressed duty to investigate government operations.
Theoretically, the House’s sergeant-at-arms could have been called yesterday to arrest and incarcerate Holder until he complies. But that power hasn’t been used since the Senate jailed a former Assistant Secretary of Commerce in 1934. Barring such a drastic action, there are two courses of action the house can take:
Criminal Prosecution
Under a 19th century statue, the House and Senate can both pursue criminal cases against those held in contempt. The problem with this is that such cases are prosecuted by the Department of Justice. First, as Attorney General, Holder is a top ranking official in the DOJ. Second, a few days ago President Obama claimed executive privilege and, historically speaking, presidents have declared as a matter of policy that they will not proceed with such cases in the face of an administration claim of executive privilege.
It is technically possible that Holder could be incarcerated, but that almost certainly won’t happen. In the modern era, citing an administration official for contempt has become a tactical maneuver in a larger Congress-White House dispute. It can put some added pressure on the administration, sure. But the executive branch has many ways to delay the resulting legal proceedings.
According to a Congressional Research Service report on Congress’s contempt power, “Efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most circumstances.”
Special Prosecutor or Civil Proceedings
Congress also has the option of appointing a special prosecutor or it could seek to enforce its subpoena through an action in civil contempt, a measure the House also approved Thursday. Such an action would leave it up to a court to determine whether the use of executive privilege was valid.
Such action in a civil court would likely drag out into years. Civil proceedings take a long time – probably too much time to serve as a useful threat to a sitting president.
Even if nothing happens either criminally or civilly to Eric Holder, the contempt label still can have great power. It puts the spotlight on a congressional-executive branch dispute offering voters a chance to judge between the actions of the two branches. With national elections just four months away, the matter is where it rightfully should be – in the courtroom of public opinion.
What happens next is mostly up to us the voters!
