Published June 28, 2012
Perhaps as significant as any contempt citation Congress might issue Attorney General Eric Holder on Thursday is the prospect that Republicans will also go to court to enforce congressional demand for documents - a tactic pursued only twice before in U.S. history.
The Republican-led House of Representatives is due to vote on whether to charge Holder, the country's top law enforcement officer, in a botched gun-running sting operation on the U.S.-Mexico border.
But legal scholars say there is no practical way for Congress to get the documents except to go to court.
That will put a spotlight not only on Holder but also on his boss, President Barack Obama, who has claimed he can withhold the documents under executive privilege.
"The contempt citation will go away," said Todd Peterson, a law professor at George Washington University.
"Congress will probably file a lawsuit, in part hoping to find some judicial support but more because it's just another way to publicize the president's refusal to comply with their demands for documents," Peterson said.
Failure to obey a potential court order on the documents would expose Holder to a more serious contempt of court charge, though few expect it to come to that.
Critics complain that high-level legal jousting has become a sport in Washington, D.C., where partisan warriors look for any way to attack their foes.
In both previous cases where Congress went to court, the targets were Republican and the cases had some success. In 1974 a federal appeals court granted a Senate panel's demand for one of President Richard Nixon's tape recordings, although the case was later dismissed on other grounds.
In 2008 Democrats, investigating whether the firings of nine U.S. attorneys were politically motivated, won an order that forced Bush administration aides, including former White House counsel Harriet Miers, to hand over documents and testify.
The aides had refused. The House voted to hold them in contempt and went to federal court in Washington, D.C., where Judge John Bates dismissed the aides' claim that they were "absolutely immune" from having to testify.
It was the first time in U.S. history that a court successfully ordered the White House to turn over information to Congress.
Bates declined to referee the fine points of what documents the White House needed to turn over. Instead he encouraged a negotiated settlement, and the sides reached a compromise one year after Democrats sued.
Now, Republicans are tearing a page from the same playbook to use against Holder, whose cabinet role puts him in charge of the U.S. Justice Department in Obama's Democratic administration.
The court action could entangle the Justice Department in an uncomfortable case and force the Obama administration to give new details of the unreleased documents.
The case pitting House Republicans against Holder would largely mirror the 2008 case, said Washington lawyer Stanley Brand, a former general counsel to the House.
"They'll take the lawsuit that was filed in the previous case, they'll change it to reflect the parties and the facts in this case, and they'll file it," Brand said. "They're following what I'd call the Miers precedent."
FAST AND FURIOUS
At issue is how Holder and the department responded to disclosures about a scheme codenamed Fast and Furious in which federal agents allowed potentially illegal gun purchases to go ahead in hopes of tracking the guns through Mexican drug cartels.
Republicans who disagree generally with Holder on the subject of gun rights say he has not been forthcoming about what he knew of the anti-trafficking program.
Holder says he is willing to negotiate with congressional investigators, although the Justice Department told Congress on June 20 that Obama was invoking executive privilege over the disputed documents.
A lawsuit would serve Republicans by keeping alive public discussion of the Fast and Furious episode, but it could be months before they would get additional documents.
"Even if the House wins the case in court, it's not actually winning. It takes so long to actually win in court," said Josh Chafetz, an associate law professor at Cornell University.
Holder might no longer be attorney general by then, if Republican Mitt Romney unseats Obama in the November 6 election or if Obama chooses a new attorney general for a second term.
In the meantime, a judge could force the Justice Department to disclose - at least to the court, in a document called a privilege log - further details of the documents it is withholding, Peterson said.