Justice tells Boehner: No Holder prosecution

Article by: SARI HORWITZ , Washington Post
Updated: June 29, 2012 - 10:13 PM

Deputy attorney general said it conforms to longstanding policy.

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U.S. Attorney General Eric Holder

Photo: Joe Burbank, Orlando Sentinel

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WASHINGTON - The Justice Department has told House leaders that Attorney General Eric Holder decision to withhold certain documents about a flawed gun operation from Congress is not a crime and that he will not be prosecuted for contempt of Congress.

Deputy Attorney General James Cole explained the decision, which was expected, in a letter to House Speaker John Boehner. The letter was released publicly Friday, just over a week after President Obama invoked executive privilege to withhold the documents.

In his letter, Cole said the decision not to prosecute Holder conforms to long-standing Justice Department practice in both Democratic and Republican administrations.

In May 1984, Theodore Olson, then assistant attorney general, wrote that U.S. attorneys are not required to refer congressional contempt charges to a grand jury or prosecute an executive branch official "who carries out the President's instruction to invoke the President's claim of executive privilege before a committee."

'This uniform position'

In July 2007 and February 2008, Attorney General Michael Mukasey cited the Olson analysis in letters to House Democratic leaders, informing them that Justice would decline to press charges against White House chief of staff Joshua Bolten and White House counsel Harriet Miers, who were held in contempt after failing to appear before the House Judiciary Committee.

"Consistent with this uniform position and practice, the Department has determined that the Attorney General's response to this subpoena issued by the Committee on Oversight and Government Reform does not constitute a crime, and 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.

On Thursday, Holder became the first attorney general to be held in contempt of Congress after he withheld internal deliberative documents that Republican lawmakers demanded as part of an investigation into the "Fast and Furious" gunrunning operation.

Court challenge ahead

The Justice Department's decision concerns only criminal action, so the House can still pursue civil litigation against Holder. On Thursday, the House voted to authorize civil action, which paves the way for a federal court challenge to Obama's decision to invoke executive privilege.

But courts have been reluctant to settle disputes between the executive and legislative branches of government. The House Oversight and Government Reform Committee -- led by Darrell Issa, R-Calif., will consult with the House counsel's office about a court challenge to the administration's decision not to cooperate, spokesman Frederick Hill said.

Republicans said the contempt citations were necessary because Holder refused to hand over documents that could explain why the Obama administration took 10 months to acknowledge the gun-walking.

But Democrats decried the move. "This is pure politics," White House spokesman Jay Carney said. "Remarkably the chairman of the committee involved here has asserted that he has no evidence that the attorney general knew of Operation Fast and Furious or did anything but take the right action when he learned of it. No evidence."

The Associated Press contributed to this report.