(The Blaze/AP) — Not surprisingly, the U.S. Department of Justice moved quickly Friday to protect Attorney General Eric Holder from criminal prosecution after the House voted to hold him in criminal contempt of Congress Thursday, including 17 Democrats.
In a Friday letter to House Speaker John Boehner, Deputy Attorney General James Cole said the DOJ would not pursue prosecution against Holder, his boss. Cole wrote that the attorney general’s refusal to turn over duly subpoenaed “Fast and Furious” documents “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,” the letter said.
By advancing the criminal contempt resolution the House essentially gave themselves the power to refer the case to U.S. Attorney for the District of Columbia who could bring it to a grand jury. However, it was seen by many experts as a largely a symbolic vote as U.S. Attorney Machen is a subordinate of Holder and President Obama has asserted executive privilege over the Fast and Furious documents the House Oversight and Government Reform Committee is after.
In past cases, courts have been hesitant to settle disputes between the executive and legislative branches of government. Further, former Attorney General Michael Mukasey also refused to refer two Bush White House aides to a grand jury after they were held in contempt of Congress, Fox News reports.
Cole says the decision is in line with long-standing Justice Department practice across administrations of both political parties.
“We will not prosecute an executive branch official under the contempt of Congress statute for withholding subpoenaed documents pursuant to a presidential assertion of executive privilege,” Cole wrote.
In its letter, the department also relied in large part on a Justice Department legal opinion crafted during Republican Ronald Reagan’s presidency.
Although the House voted Thursday to find Holder in criminal and civil contempt, Republicans probably are still a long way from obtaining documents they want for their inquiry into Operation Fast and Furious, a flawed gun-tracking investigation focused on Phoenix-area gun shops by Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives.
The criminal path is now closed and the civil route to get the documents will probably not be resolved anytime soon. However, Congress can now try to force Holder’s hand by arguing their case in court.
The House Oversight and Government Reform Committee chairman, Rep. Darrell Issa, R-Calif., is leading the effort to get the material related to Operation Fast and Furious and said Thursday they will pursue the case civilly.
“The House has authorized me to hire staff and legal staff who can pursue civilly through the courts to try to get a federal judge to order, separately, this discovery,” he said.
Fox News has more on the options still available to the House committee:
For now, the Obama administration can argue that its executive privilege claim over the documents protects Holder from the possibility of prosecution.
But if a civil court rules that claim invalid, Hill said, “then basically Justice has lost that shield.”
If the administration still refused to turn over the documents the Republicans want, then they could start looking at prosecution more seriously.
Republicans technically have a handful of other options if the Justice Department still refused to take the case to a grand jury.
Republicans could move to appoint a special prosecutor or even move to impeach. The last time that happened with a Cabinet member, though, was in 1876 — with the impeachment trial of war secretary William Belknap.
More than 100 Democrats walked out of the House chamber to boycott the first of two contempt votes, saying Republicans were more interested in shameful election-year politics than documents.
“This is pure politics,” White House spokesman White House Press Secretary Jay Carney said about the vote.
Republicans demanded the documents for an ongoing investigation, but their arguments focused more on the need for closure for the family of slain Border Patrol agent Brian Terry. Two guns identified by the Fast and Furious tracking operation were found near his body after a shootout in Arizona.
Democrats promised closure as well, but said a less-partisan Republican investigation was the only way to get it.
Adding to the emotion of the day, the family of the slain agent issued a statement backing the Republicans.
“The Terry family takes no pleasure in the contempt vote against Attorney General Eric Holder. Such a vote should not have been necessary. The Justice Department should have released the documents related to Fast and Furious months ago,” the statement said.
The contempt votes happened on the day that Obama’s health care law survived in the Supreme Court, prompting some Democrats to speculate that the votes were scheduled to be overwhelmed by news stories about the ruling.
About five hours after the court ruled, with news sites flooded with information about the health care ruling, the House voted 255-67 to declare Holder in criminal contempt.
A second vote of 258-95 held Holder in civil contempt and authorized the House to file a lawsuit.
The Associated Press contributed to this report.