By David Ingram and Drew Singer, Reuters
WASHINGTON — Perhaps as significant as any contempt citation Congress might issue Attorney General Eric Holder on Thursday is the prospect that Republicans will also go to court to enforce congressional demand for documents — a tactic pursued only twice before in U.S. history. The Republican-led House of Representatives is due to vote on whether to charge Holder, the country’s top law enforcement officer, with contempt of Congress for withholding documents in a botched gun-running sting operation on the U.S.-Mexico border. But legal scholars say there is no practical way for Congress to get the documents except to go to court. That will put a spotlight not only on Holder but also on his boss, President Barack Obama, who has claimed he can withhold the documents under executive privilege. “The contempt citation will go away,” said Todd Peterson, a law professor at George Washington University.
“Congress will probably file a lawsuit, in part hoping to find some judicial support but more because it’s just another way to publicize the president’s refusal to comply with their demands for documents,” Peterson said. Failure to obey a potential court order on the documents would expose Holder to a more serious contempt of court charge, though few expect it to come to that. Critics complain that high-level legal jousting has become a sport in Washington, D.C., where partisan warriors look for any way to attack their foes. In both previous cases where Congress went to court, the targets were Republican and the cases had some success. In 1974 a federal appeals court granted a Senate panel’s demand for one of President Richard Nixon’s tape recordings, although the case was later dismissed on other grounds. A Precedent In 2008 Democrats, investigating whether the firings of nine U.S. attorneys were politically motivated, won an order that forced Bush administration aides, including former White House counsel Harriet Miers, to hand over documents and testify. The aides had refused. The House voted to hold them in contempt and went to federal court in Washington, D.C., where Judge John Bates dismissed the aides’ claim that they were “absolutely immune” from having to testify.