Before Fully Assessing Contempt Citation, U.S. Attorney for D.C. Refuses to Hold Holder Accountable

Posted: Jun 29, 2012 3:30 PM

In a non-surprising move, the Department of Justice has just officially announced they will not proceed with prosecuting Attorney General Eric Holder after the House of Representatives voted to hold him in criminal and civil contempt of Congress yesterday.

The Justice Department moved Friday to shield Attorney General Eric Holder from prosecution after the House voted to hold him in contempt of Congress.

The contempt vote technically opened the door for the House to call on the U.S. attorney for the District of Columbia to bring the case before a grand jury. But because U.S. Attorney Ronald Machen works for Holder and because President Obama has already asserted executive privilege over the documents in question, some expected Holder's Justice Department to balk.

Deputy Attorney General James Cole confirmed in a letter to House Speaker John Boehner that the department in fact would not pursue prosecution. The attorney general's withholding of documents pertaining to Operation Fast and Furious, he wrote, "does not constitute a crime."

"Therefore the department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the attorney general," Cole wrote.

It was the duty of U.S. Attorney for the District of Columbia Ronald Machen to fully assess the contempt charges before making a decision about prosecution.

Senator Grassley, who has been a top leader of the investigation into Operation Fast and Furious, expressed his doubts about whether Machen reviewed the charges before making a decision in a letter this afternoon. Why? The Department actually made the decision not to prosecute Holder yesterday before final contempt votes were tallied.

“The Deputy Attorney General’s letter has put the cart before the horse,” Grassley wrote today.  Grassley also said that without a particularized description of the documents being withheld or a description of the documents over which executive privilege has been asserted, the U.S. Attorney cannot reasonably make an intelligent judgment as to the validity of any privilege claim and his duty to present the citation to a grand jury.

“Your independence and integrity were cited as the reason that there was supposedly no necessity to appoint a special prosecutor.  This matter [the congressional contempt citation] gives you an opportunity to live up to that high praise and prove your independence.”

"The way this has been handled so far suggests no such independence at all. Before you have even received the citation, before you have even had a chance to understand the scope of the documents and the privilege claim at issue, the Deputy Attorney General has already announced the decision of “the Department” not to proceed as required by the contempt statute. Therefore, so that Congress can have a better understanding of the procedural standing of this matter, please provide answers to the following questions:
1)    Have you had any communications with the Deputy Attorney General, the Attorney General, or other senior Department political appointees about the contempt citation or about Operation Fast and Furious? If so, provide a detailed description of those communications and when they occurred.

2)    Have you been instructed not to present the contempt citation to a grand jury? If so, when, by whom, and on what grounds?

3)    Have you independently decided not to present the contempt citation to a grand jury? If so, when and on what basis?

4)    Have you conducted an independent review of the documents being withheld from Congress by the Attorney General in order to assess the validity of any privilege claims? If so, when did that review occur? If not, please explain why not.

5)    Have you been provided with copies of the documents the Attorney General is withholding from Congress or a specific list of the documents being withheld? If so, have you conducted an independent analysis of the executive privilege claim? If not, how can you conduct an independent assessment of the validity of any executive privilege claim or make any independent judgment about your duty under the contempt statute to present the contempt citation to a grand jury?

Grassley has asked for a response, we'll see if he gets one. So now, it's up to the Oversight Committee to file a civil lawsuit in order to get the documents they need from Holder about the lethal Fast and Furious operation.

On another note, Machen is the same guy Holder has appointed to investigate national security leaks, donated to President Obama's campaign and was appointed to his current position by Obama.