Eric Holder's Politics of Contempt

The attorney general has it coming, but the answer isn't a special prosecutor.

By William McGurn
The Wall Street Journal
June 19, 2012

Finally, Eric Holder is on the ropes. House members are readying to vote him in contempt of Congress. Senators wonder aloud whether he can be trusted to investigate White House leaks that have exposed inside information about some of our most successful antiterror operations to some of our most dangerous enemies.

Alas, the old bulls of the Senate—including Republicans John McCain, Lindsey Graham and Chuck Grassley, along with Independent Democrat Joe Lieberman—are calling for the one thing that might derail the accountability train: a special prosecutor.

It all makes for the perfect tea party moment, an opportunity to make one of the most attractive arguments from the 2010 revolution: that process is as important as outcome, and that the Constitution gives us all the process we need to hold our leaders accountable.

The most immediate constitutional mechanism for accountability happens to be the one Mr. Holder is trying to put off—a vote by the House to hold him in contempt for refusing to turn over documents relating to "Fast and Furious." That was a stupid policy that had tragic results when a weapon smuggled into Mexico by U.S. authorities ended up being used to kill a U.S. Border Patrol agent.

Should the House hold him in contempt, Mr. Holder would be left with three choices: standing by as a U.S. attorney begins prosecuting him; directing the U.S. attorney not to prosecute him; or invoking executive privilege to justify not releasing the documents Congress seeks.

There are huge downsides to all three. Let's take them one by one.

A sitting attorney general under federal prosecution would be fatally weakened, with his continuing presence in the job a fat target for the president's political opponents. On the other hand, ordering a U.S. attorney not to prosecute him suggests a massive conflict-of-interest, not to mention conveying that he has something to hide. Ditto for "executive privilege." Not only does executive privilege have a tainted history, it couldn't be invoked without admitting that the White House is also implicated in Fast and Furious.

In no scenario are we likely to have the satisfaction of a definitive conclusion. Then again, the Framers of the Constitution didn't expect we would. Their view was to let the different parties and different branches of government go at it, and leave accountability for the voter to impose at the next elections.

The furor over Fast and Furious started out as a policy dispute, with Congress trying to find out who ordered what and why. Mr. Holder has helped escalate the issue into a contempt vote by his stonewalling response.

The fuss over national-security leaks is different. Unlike stupid policy decisions, leaking classified information is inherently criminal. That's why Mr. Holder has appointed two U.S. attorneys to investigate.

President Obama says his White House didn't leak. But books and news stories—about drones, the virus that attacked Iranian computers and more—cite as their sources the president's advisers and former advisers.

That's the reason why Mr. McCain and others are calling for a special prosecutor: How can attorneys who report to Mr. Holder oversee any credible investigation of their boss? Especially when, instead of saying he will fire anyone found to have leaked, President Obama publicly asserts that there have been no leaks?

Perhaps after a few years and gazillions of tax dollars, a special prosecutor would give his results. What purpose, however, is served by keeping those answers to a prosecutor instead of to the American people? The proper vehicle for getting answers is Congress, using its oversight powers to conduct hearings and get the appropriate officials on the record and under oath.

The best outcome would be for Mr. Holder to reach an accommodation with the House Oversight Committee's Darrell Issa (R., Calif.) that would avoid a contempt vote altogether. Unfortunately for the attorney general, he enters the conversation with a highly politicized record—here investigating CIA interrogators whose intel would later help his president hunt down bin Laden, there declining to defend the Defense of Marriage Act, there again declining to prosecute Black Panthers for voter intimidation.

Mr. Issa and House Speaker John Boehner have their own calculations to make. They must weigh whether holding the attorney general in contempt would backfire if Americans decided it was the latest Beltway attempt to criminalize policy differences. Forcing that political calculation is also as the Framers intended.

For tea partiers, this is a crisis that shouldn't go to waste. We're well reminded of the Obama people who today express doubts about a special prosecutor but sang a very different song when Bush administration folks were the target. We're even better reminded that the possibility that the nation's highest law enforcement officer might be held in criminal contempt by Congress means we need not look outside the Constitution for accountability.

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A version of this article appeared June 19, 2012, on page A11 in the U.S. edition of The Wall Street Journal, with the headline: Eric Holder's Politics of Contempt.