Washington (CNN) — Washington’s uproar over the infamous Operation Fast and Furious gun-running sting will likely hit its political climax Thursday as the House of Representatives votes to hold Attorney General Eric Holder in contempt.
But beyond the political symbolism of such a vote — no attorney general has ever been held in contempt by Congress — what exactly does it mean? Where does the case go from here?
If modern history is any guide, it won’t go very far.
The GOP-controlled House is actually set to hold two votes: one for criminal contempt and another authorizing civil action.
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The criminal contempt charge would refer the entire dispute to District of Columbia U.S. Attorney Ronald Machen, who would then decide whether to file criminal charges against Holder or others, based on the Justice Department’s refusal to hand over information sought by House Republicans.
If you sense a possible conflict of interest here, you’re not alone. Machen was appointed to his job by President Barack Obama. Holder’s his boss.
Most legal observers expect Machen to do nothing. They note that President George W. Bush’s Justice Department refused to take any action after a Democratic-controlled House voted in early 2008 to hold then-White House Chief of Staff Josh Bolten and then-White House Counsel Harriet Miers in contempt for actions relating to the controversial dismissal of several U.S. prosecutors.
They also note Obama’s use of executive privilege to prevent the release of certain documents in the Fast and Furious case — a move which typically makes executive branch officials immune from criminal prosecution.
House Republicans are well aware of this recent history, which helps explain the separate measure authorizing a civil action. That resolution, according to a GOP spokesman, would allow the House Committee on Oversight and Government Reform to file a lawsuit asking the courts to examine the Justice Department’s failure to produce certain subpoenaed documents, as well as the validity of the administration’s assertion of executive privilege.
The committee is led by GOP Rep. Darrell Issa of California, Holder’s chief congressional nemesis.
Specifically, Issa’s panel is seeking documents showing why the Justice Department decided to withdraw as inaccurate a February 2011 letter sent to Congress that denied any major flaws in Operation Fast and Furious.
Holder has repeatedly refused to turn over materials containing internal deliberations, and asked Obama last week to assert executive privilege over such documents.
The goal of the civil action — beyond continued political embarrassment to a president in the middle of a tough re-election campaign — would be to compel Justice Department officials and their political allies in the White House to hand over the documents in question.
But Cornell University law professor Josh Chafetz, a legislative expert and former federal clerk, says any judicial proceedings relating to the civil action will likely take years and outlast any political interest in the case.
“Just by going to court, the House guarantees it loses. Even if (the House) wins, it’s going to be years from now,” Chafetz told CNN. “This Congress will be out of office and Obama may be out of office. If they wind up going to court, it will actually be to the great detriment of the House’s oversight role.”
Chafetz noted that House Democrats also pursued the case against Miers and Bolten in court, finally reaching a compromise settlement after Bush left office in 2009. By that point, few people cared.
The Democrats “got some of the documents they wanted and some of the testimony they wanted,” he said. “But the timing was so unfortunate for the House, and that’s what’s happening this time.”
Stan Brand, a top Washington lawyer and former general counsel to the House under Speaker Tip O’Neill, predicted “two or two-plus years of protracted, arduous litigation.”
“We’ll hear about it again in 2014,” he told CNN. “I think it’s fine to go to court and try to vindicate your interest, but this isn’t going anywhere.”
Alberto Gonzales on SCOTUS Holder Vote
Justice program allowed guns into Mexico
Fast and Furious, a so-called “gun-walking” operation, allowed roughly 2,000 guns into Mexico with the goal of tracking them to Mexican drug cartels. Two guns found at the scene of Border Patrol Agent Brian Terry’s fatal shooting were linked to the operation. Guns from the operation have also been linked to an unknown number of Mexican civilians’ deaths.
Republicans say the documents they seek are needed to get to the circumstances around Terry’s death. Democrats are crying foul, and insist the GOP probe is all about politics.
“House Republicans have made the strategic choice to try to score political points,” White House press secretary Jay Carney argued Wednesday. They are “focusing their time and attention on a law enforcement operation from 2009 that was botched and that everyone agrees was botched.”
The Republicans have “made that choice rather than focusing on jobs and the economy.”
For their part, House GOP leaders insist they are merely holding the executive branch accountable for its actions — a core constitutional function of Congress.
The Justice Department has “acknowledged that it made false claims to Congress about this reckless operation,” House Speaker John Boehner, R-Ohio, said last week. “The Obama administration, however, (has) stonewalled Congress’s legitimate oversight responsibilities. … The American people deserve the truth and the administration has an obligation to turn over the relevant documents right now.”
Political analysts are sharply divided over the merits of the GOP’s case and its potential political fallout.
“I think, for a lot of Americans who don’t understand the complexities and really don’t care about … this, I think it is one more illustration, as if we needed any more, that Washington is broken,” veteran political analyst David Gergen said earlier this month on CNN.
“If people conclude yet once again those guys really cannot run the country, it is very discouraging.”
CNN’s Allison Brennan, Tom Cohen, and Deirdre Walsh contributed to this report