- - Friday, April 18, 2014

ANALYSIS/OPINION:

Attorney General Eric H. Holder was reminded during a recent congressional hearing that he has been held in “contempt of Congress” — for nonproduction of subpoenaed documents. He interrupted with a personal rebuke of his questioner.

Later, he suggested that questioning of his leadership, nonresponsiveness to congressional oversight, and referring to the contempt vote was evidence of racism. The accusation was made a second time, perhaps as a political stratagem, by the Democratic Congressional Campaign Committee. Let’s stop there — and stop the deflection, too.

No attorney general of the United States is entitled, for any reason, to escape scrutiny of Congress, period. Is the attorney general really mounting a defense to his contempt charges on the basis that Congress is racist and that he need not respond to legal prerogatives they lawfully exercise? Where would that wild notion put us as a country? How would any attorney general hiding behind this kind of defense ever be held accountable?

Does this mean, for example, whenever this attorney general is questioned for noncompliance with congressional subpoenas — particularly in a case grave enough to earn him criminal and civil contempt citations — an acceptable defense shall be to accuse the questioner of racism? Is this not a transparent deflection?

Of all people, the attorney general should be the American most respectful of lawful prerogatives, one of which is a subpoena, another judgment of contempt for failure to honor a subpoena. Should he not reflexively proffer real answers, not diversions?

A few facts are in order here. Congress has exercised an implied constitutional right to find any executive official in “contempt of Congress” since the 1790s. This means of ensuring accountability by the executive is neither new nor racist, but a matter of balanced powers and constitutional law. Even an attorney general is accountable to the people and must comply with their “right to know.” Congress enforces that right.

Second, no attorney general has ever successfully stiff-armed Congress in a request for material documents, bullheadedly declining to “accommodate,” without eventually disgorging the documents or suffering severe legal consequences. Even when documents point to the subpoenaed official — indeed, especially then — contempt guarantees visibility into the executive.

Thus, in the top dozen contempt votes since 1975, every vote concluded in material “accommodation” or in severe civil or criminal penalties — until now. Mr. Holder has managed to escape production, accommodation and penalties up to this point. One can see why this bothers Congress — and many Americans.

Third, let us burrow into facts behind this particular vote of contempt. The documents sought relate to the attorney general’s role in a tragically flawed gunrunning scheme, one in which the Obama administration allowed hundreds of guns into Mexico, and then lost track of them.

The gunrunning — more ironic because this attorney general seeks to limit American gun ownership — put firearms in the hands of Mexican drug traffickers, who then reportedly killed hundreds of Mexicans and a U.S. law enforcement officer. The scheme raises issues of judgment, management, civil and criminal law. Any Congress would have a right to ask about origins and approvals — and to get the truth.

Curiously, this administration’s response has been coy, dissembling and now, with counteraccusations of racism, deflective — in short, incoherent. Don’t the American people — Republicans, Democrats and independents alike — deserve to know who authorized this deadly and deeply flawed gambit? Exactly what was the attorney general’s role?

What about the Internal Revenue Service targeting groups with a conservative pedigree? Doesn’t the attorney general owe truth — the whole truth and nothing but the truth, so help him God? Is that not what his prosecutors ask others every day, and what witnesses before the U.S. Congress must swear to tell? Is this really too much to ask?

Apparently, it is. Instead of respecting the age-old prerogatives of Congress, including compliance with subpoenas seeking material facts, the attorney general and White House have decided to default to charges of racism, seeking to deflect or perhaps silence those who publicly raise noncompliance with that critical subpoena and the subsequent contempt vote.

Result? This demeans the attorney general and the noble institution he represents, as well as demonstrating — again — his contempt for Congress and those of us represented by the institution. Without congressional oversight of the executive, there is no balance of power. Congress is the people; the attorney general is a mere appointee.

For him to say to Congress, as he so brashly did, “Don’t go there, buddy” is tantamount to playground bullying, disinterest in Congress‘ institutional rights. Is that how we expect the nation’s top law enforcement officer to address Congress on any issue?

Mr. Holder’s attempted sleight-of-hand is more egregious. He undermines the law. The Department of Justice models and inspires respect for law; it should not disparage it. Transparency and trust are central. To throw up a smoke screen of racism in order to avert personal charges of contempt is itself contemptible.

His bluster undermines all who work in the department and the law itself, dangerously dividing two institutions from one another on very personal grounds. By implying that congressional oversight is unworthy, or should be stopped or ignored, he may think he has cleverly advanced some political or personal agenda, but the real victim is respect for law.

Instead of more self-serving trash talk and pique, Mr. Holder should take this moment to seek permanent accommodation on all documents behind that contempt vote, and let disgorgement of these documents lead investigators where it may. By doing so, he would shock his critics. He would demonstrate real leadership, restore respect for law, honor the centuries-old oversight prerogatives of Congress, and confirm the people’s “right to know.”

Robert Charles is a former U.S. Court of Appeals clerk, civil litigator and counsel to a congressional oversight committee.

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