With Loretta Lynch’s long-awaited confirmation as attorney general last week, Eric Holder has finally left office. And while congressional Republicans are almost certainly happy to be rid of Holder, whom they made no secret of disliking intensely, they do appear to have some unfinished business with him.
Remember Operation Fast and Furious? Remember the hoopla surrounding the contempt citation against Holder for refusing to turn over documents that had been subpoenaed by the House Oversight and Government Reform Committee?
{mosads}No? Let me refresh your memory. Way back in 2011, the committee subpoenaed a bunch of documents from the Department of Justice. The department turned some over, but withheld others, asserting executive privilege. After several more months of fruitless negotiations, the committee recommended that Holder be held in contempt of Congress, and the full House voted to do so in June 2012.
At the time, I argued in The Washington Post that it would be a mistake for the House to turn to the courts to enforce the subpoena. (A longer, more scholarly version of that argument, written before the Holder controversy arose, can be downloaded here.) I argued then that going to the courts inevitably diminished congressional power, by suggesting that an order of a federal district judge was of greater authority than an order of the House of Representatives.
More immediately, I also noted that going to court almost certainly would not result in the House getting what it wanted, at least once you took timing into consideration. Once the House went to court, I argued, the administration could draw proceedings out for years, making a mockery of the congressional oversight role that the subpoena and contempt powers are meant to promote.
The House, of course, did choose to go to court, filing suit in August 2012. The congressional subpoena, the contempt citation, and the filing of the lawsuit all occurred in the 112th Congress, during President Obama’s first term as president. We are now in the 114th Congress, during Obama’s second term. Of course, when the House filed suit, there was no guarantee that the Republicans would still control the House three years later, nor was there any guarantee that there would still be an Obama administration to oversee after the 2012 election. And the political salience of the issue has clearly faded in the intervening years: Today, any discussions using the words “fast” and “furious” in close proximity are much more likely to refer to the latest installment in the Vin Diesel/Paul Walker/Jordana Brewster movie franchise than to the Bureau of Alcohol, Tobacco, Firearms and Explosives operation that borrowed the movies’ name.
What does the House have to show for its efforts? In September 2013, the district court denied Holder’s motion to dismiss the lawsuit. In October 2014, the House moved that Holder be held in contempt of court for failing to turn over documents. Yes, the United States House of Representatives’s chosen method for enforcing its contempt of Congress citation was to ask a federal district judge to hold the congressional contemnor in contempt of court — that’ll show him! The court denied that motion four days later, while also ordering Holder to turn over those documents that did not, in the Department of Justice’s view, fall under executive privilege. The next month, the department produced those documents.
The department also provided a 1,300-page list of the documents that it did consider to be privileged and therefore was not turning over. The House moved to compel the department to turn over all of those documents. The parties are still fighting over that motion — the most current entry on the case’s docket, dated March 13, 2015, is the House’s reply to Holder’s opposition to the House’s motion to compel Holder to release the documents. Dizzy yet?
And even if the district judge gives the House everything it wants, Holder can still appeal to the D.C. Circuit Court of Appeals, where briefing, argument and decision will take many more months, if not longer. After that, Holder could petition for the case to be reheard by the appeals court en banc, before finally petitioning for the Supreme Court to hear it. In short, even if the House “wins,” it is unlikely to get a final judgment before the 2016 elections.
In other words, not only will Holder be long gone from the scene, even Obama will have at least one foot out the door. And no one is likely to remember by then what the controversy was about in the first place. This is a poor showing for the House’s vitally important oversight function.
As I argued when the House first held Holder in contempt, it had options, ranging from impeachment or using its sergeant-at-arms to arrest Holder (both highly unlikely in that political climate) to tugging on the purse strings or using the appointments power. Its allies in the Senate could, for instance, have tied the holdup on confirming Lynch to a demand that she commit to turning over the withheld documents.
But instead, it turned to the courts, and the wait continues.
This piece has been revised to accurately reflect the Senate’s role in confirming Loretta Lynch as attorney general.
Chafetz is professor of law at Cornell Law School, where he writes on legislative procedure, the separation of powers and constitutional history. His first book, Democracy’s Privileged Few, was published by Yale University Press in 2007. His second book, Congress’s Constitution, is under contract with Yale University Press.