"We are filing charges against Attorney General Eric Holder tomorrow."
Those words, sent in a Tweet at 8:40 PM yesterday by House Oversight Committee Chairman Darrell Issa, signal what may become the first serious existential legal challenge to an Obama administration official yet filed. It also marks a very clear escalation in Issa's investigation of the Justice Department's "Operation Fast and Furious," a gunwalking operation in Mexico that led to the death of over 200 people, including Border Agent Brian Terry.
Since the news of that operation broke, Issa's Oversight Committee has been engaged in a bureaucratic knife fight with the Obama administration's Department of Justice, commanded by Attorney General Eric Holder, over certain documents related to the scandal. While the Justice Department has turned over thousands of pages relating to gunwalking during both of the previous Presidential administrations, a few key missing pieces remain, such as a set of documents that may explain how as many as 2000 guns fell into the hands of Mexican Drug Cartels. Holder has defied the House's subpoenas for these documents repeatedly, racking up Congressional contempt citations both at the civil and criminal levels, all the while steadily defending his role in the scandal.
Issa has, understandably, refused to take Holder's word, given the latter's dogged unwillingness to have the documents related to the scandal disclosed, even in the face of an enforceable subpoena. The fight has further escalated since President Barack Obama made the decision to back Holder up, citing Executive Privilege, turning this into a drag-out fight between the Executive and Legislative branches of government.
All that means the resolution of the problem depends on the third, Judicial branch of government. Hence Issa's Tweet, which moves this battle from the halls of Congress and the White House into the arena of a Federal Court, where Holder will either be compelled to turn over the documents Issa is demanding, or be let off the hook by a judge.
However, there is a complication. It's not clear that judges have the power to force the Executive Branch to surrender such documents to Congress. The reason is quite simply that there is no legal precedent that can guide a judge's hand on this point. The closest thing to a precedent is a District of Columbia District Court's ruling during the last years of President George W. Bush's administration that the House could force certain Executive Branch officials to testify. This, however, does not necessarily imply the ability of the House to force the release of any and all documents or information on the part of the Executive Branch.
Aside from the legal problems, this decision on the part of the House could easily become a talking point in the Presidential race for former Massachusetts Governor Mitt Romney and Rep. Paul Ryan, the presumptive nominees on the Republican ticket. And in the event that Issa gets the documents he wants, that talking point has the potential to become a much larger issue, especially given President Obama's assertion of executive privilege. The issue has, to this point, remained under the radar in the Presidential election. Time will tell if that can remain the case once Issa's lawsuit is filed.