WASHINGTON — A House vote finding Attorney General Eric Holder in contempt of Congress on Thursday would create election-year fireworks but maybe not much lasting sizzle. Federal judges who've been called into similar disputes often sound like frazzled moms, in essence telling Congress and the president, "I don't care who started it, you two end it."
Time appears to be limited for the House to pursue a criminal contempt case against Holder or a civil case to compel President Obama's administration to turn over subpoenaed documents. A contempt citation against Holder presumably would expire when the current Congress ends in January.
If the courts do end up deciding the case, however, they could shed some light on a foggy patch of constitutional law: What happens when Congress demands that a president turn over documents he says should be kept secret?
Particularly, once the president invokes executive privilege to deny Congress documents it has subpoenaed.
The Supreme Court last took up the constitutional question of executive privilege during Watergate in the 1970s. But beginning with George Washington, presidents have asserted authority to withhold executive branch records from Congress. The bickering over the proper reach and limits on this authority has never stopped. It's "vague and essentially undefined terrain," according to the Congressional Research Service.
This time the argument is whether Obama is within his rights to order Holder to withhold some Justice Department documents subpoenaed by a House committee. The lawmakers are investigating a flawed anti-smuggling investigation in Arizona known as Operation Fast and Furious that tried to track guns — suspected of being purchased illicitly in the U.S. — all the way to gun-smuggling kingpins, who long have eluded prosecution. Agents lost track of about 1,400 guns and some have turned up at crime scenes in Mexico and the U.S.
Formal Justice Department policy forbids using this risky strategy dubbed "gun-walking" and instead calls for agents to arrest people they suspect of buying guns for smugglers or others as soon as they leave gun stores. But that old strategy failed to stop guns from reaching Mexico — more than 68,000 in the past five years — and generated wide criticism. So Bureau of Alcohol, Tobacco, Firearms and Explosives agents in Arizona, beginning in the administration of President George W. Bush, experimented with versions of the gun-walking tactic.
House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif., says because the Justice Department initially denied but later acknowledged that Fast and Furious tried "gun-walking," he needs the documents to determine whether officials intentionally lied to Congress. The White House calls the demands for more and more documents an "election-year fishing expedition."
Claims of executive privilege tend to be viewed through a political lens.
As a Democratic senator in 2007, Obama accused Republican President George W. Bush of hiding behind executive privilege. Mitt Romney, at the time, defended Bush as simply trying to preserve the powers of the presidency.
These days, Obama is claiming the power of executive privilege, and Romney, his Republican presidential rival, accuses him of hiding behind it. Likewise, congressional Democrats and Republicans are trading charges of hypocrisy. That's nothing new.
History tells us a few things about the executive privilege fights:
It wasn't until Watergate that the Supreme Court formally recognized the doctrine of executive privilege, as part of the balancing of power between the president and Congress. The justices said conversations and memos between presidents and their top aides were presumed to be confidential in most cases.
Yet Nixon lost that case, but it dealt with the power of criminal prosecutors, not the power of Congress. The court ruled that in this case, Watergate prosecutors' need for the tapes as evidence in their criminal cases outweighed the president's authority to keep them secret. Congress is not the same as a criminal prosecutor and the court didn't spell out when Congress might be able to overcome executive privilege.
PRESIDENTS KEEP PUSHING FOR MORE
Through history, presidents of both parties have sought to expand executive privilege. And Congress has pushed back.
There are two main types of executive privilege. One privilege, for "presidential communications," only covers the president and the work of top aides preparing advice for the president.
The other, known as "deliberative process privilege," covers a much wider swatch of administration officials, even if they weren't working on something for the president specifically. Presidents are required to have a stronger argument to justify keeping secrets under this broader authority, which can involve documents they never saw or were even intended to see.
WHICH EXECUTIVE PRIVILEGE IS IT?
Issa and the White House seem to be arguing right past each other when they talk about the president's assertion of executive privilege.
The White House says Obama is claiming "deliberative process privilege" to cover Justice Department documents that don't involve the president or his top aides directly but instead relate to the department's decision-making process. The idea is that officials throughout the executive branch need to discuss policy decisions freely, in private, without worrying that their words or recommendations will be nitpicked by Congress later.
Issa argues, however, that the president can only legitimately claim executive privilege for documents that involve himself or his top advisers. This would be true, if Obama were claiming the communications privilege, but so far he hasn't. He's claimed only "deliberative" privilege.
The potentially bad news for Obama: A federal appeals court has ruled that this broader privilege is easier for Congress to overcome and it "disappears altogether when there is any reason to believe government misconduct has occurred."
AFTER THE VOTE
The Republican-led House plans a contempt of Congress vote for Holder on Thursday. If approved, the next step would be to send the contempt citation against Holder to the local U.S. attorney for enforcement. Traditionally the Justice Department doesn't pursue criminal contempt of Congress cases against its own administration.
If, as history suggests, the Justice Department won't prosecute a criminal case against Holder, the House could hire its own lawyer and file a civil lawsuit in federal court. Such a case could lead to an order for Holder to turn over the documents. But the federal District Court in Washington has been reluctant to rush into such cases.
TAKE IT OUTSIDE
When a House subcommittee subpoenaed AT&T for documents about President George W. Bush's program of using national security wiretaps on Americans without court approval, the Justice Department objected. The dispute moved to the District Court in Washington, but it declined to jump into the fray quickly. The court said framers of the Constitution expected such disputes between Congress and the president to be resolved in "a spirit of dynamic compromise."
Sound naive? It worked.
The court — like an annoyed parent — said the two sides hadn't tried hard enough to work things out and sent them back to talk more. In the end, a compromise allowed subcommittee staff members to review some unedited memos about the wiretaps and tell lawmakers what they had read.
Similarly, in a Reagan administration case, the District Court declined to get involved in a dispute over whether the Environmental Protection Agency could refuse to turn over documents to Congress. The court called for "compromise and cooperation" — and eventually agreement was reached outside of the courtroom.
TIME'S RUNNING OUT
Judges tend to move slowly and cautiously.
The hopes of the House winning a legal resolution before the November elections are dim. And the authority behind House subpoenas or contempt citations traditionally are considered to expire when that Congress ends, according to the Congressional Research Service. That happens in January 2013.
In any event, if Obama loses his re-election bid the case becomes moot. If Obama wins and Republicans retain control of the House, they could vote to restart the fight. But Holder might no longer be in office.
A contempt of Congress vote against Holder probably would amplify calls from some Republicans for his resignation. Although the administration's shown no signs of that so far, it's widely believed, even among Holder's close associates, that he doesn't intend to return should Obama win a second term. When asked about it, Holder has been noncommittal.