Holder Contempt Vote: What?s Next?

The 255-67 vote, with 17 Democrats voting yea and many more Democrats walking out of the chamber in protest, capped a day of often bitter debate marked by the two parties trading recriminations. Republicans defended the vote as an exercise of Congress' oversight duty, saying they needed to resolve how a federal gun-tracking program known as Fast and Furious allowed guns to flow into Mexico and appear at the scene U.S. Border Patrol Agent Brian Terry' shooting death.

No Justice Department is above the law and no Justice Department is above the Constitution, which each of us has sworn an oath to uphold, said Speaker of the House John Boehner, R-Ohio. 

Democrats decried what they called an election year witch hunt, saying Republicans were more focused on embarrassing the Obama administration than on determining how Fast and Furious unraveled. They faulted their colleagues for calling a full floor vote less than a week after the matter was voted out of committee.

I think this investigation has been extraordinarily superficial, said Minority Whip Steny Hoyer, D-Md. Let us reflect. Let us bring thoughtful judgment. Let us not, every time there is the opportunity to, choose confrontation over cooperation and consensus.

It now falls to the U.S. attorney for the District of Columbia to send the contempt citation to a grand jury. But the U.S. attorney works for Holder, making that unlikely.

A House Oversight and Government Reform Committee recommended the contempt vote after President Barack Obama invoked executive privilege to deny its subpoena demanding that Holder share documents related to Fast and Furious. That same claim of executive privilege could shield Holder from a grand jury.

It doesn't mean anything because it's not self-enforcing, said Stan Brand, an attorney who was formerly general counsel for the House of Representatives, of the contempt vote. The Office of Legal Counsel, under Democrats and Republicans, has taken the position that they can't be forced to criminally prosecute an executive official who is asserting a claim of executive privilege.

The legitimacy of the executive privilege assertion has fueled a dispute between Congress, led by Oversight Committee Chairman Darrell Issa, R-Calif., and the White House. Issa has charged that the Obama administration has either falsely denied knowledge of Fast and Furious or is improperly invoking executive privilege.

The offices of Issa and Boehner did not respond to inquiries asking how they plan to proceed. But history offers some clues.

During the Reagan administration, after Congress cited Environmental Protection Agency Administrator Anne Burford for contempt after she refused to turn over documents detailing the Superfund program for rehabilitating polluted sites, the Justice Department went to court to affirm that it had no obligation to refer Burford's case to a grand jury. The court threw the case out, saying clashes between the executive and legislative branches should be delayed until all possibilities for settlement have been exhausted.

Things went differently under the George W. Bush administration, when Congress cited White House Counsel Harriet Miers for contempt after she ignored a subpoena to appear before a panel investigating the politically motivated firings of nine U.S. attorneys (that time, it was the Repubicans who walked out in protest). The Bush administration said White House officials were protected by executive privilege, but the standoff culminated, after Bush left office, in Miers agreeing to testify under oath.

Unlike with the probe into the firings of U.S. attorneys, where Miers failed to even show up, Holder has testified numerous times and released thousands of pages of documents. But it remains likely that Holder's contempt citation will launch a protracted struggle between the White House and Congress.

Absent the parties coming to some private agreement for everyone to save face, I think we'll have a stalemate through the election, said Patrick Griffin, a former legislative assistant in the Clinton White House and a professor of government at American University. I don't think it will be resolved soon.