The House Government Reform Committee’s vote June 20 to hold Attorney General Eric Holder in contempt of Congress is making headlines. Committee Chairman Darrell Issa, a California Republican shown at right, led the vote to a party-line finding that Holder illegally withheld documents regarding a botched Arizona gun-trafficking probe. In response, Holder asserted Executive Privilege.
The main lesson from the political theatrics, as I told WWL radio host Tommy Tucker June 21, is that both sides hold the public in profound contempt. They think we’re all fools, easily bamboozled.
Most people are too busy to do all the legal research, but not mistaken on the big picture: Public approval of Congress has ranged between 10 and 17 percent this year for what the Founders intended as the branch of government most responsive to public opinion. People get the picture even if gerrymandered districts and corrupt campaign finance will keep the vast bulk of these bench-warmers in office this November.
Let’s start with the obvious: Enforcement of a House criminal contempt finding enforcement rests with Holder even if Republicans win a vote citing him next week. An arcane law does exist for Congress to enforce its own finding. Congress would do so by sending congressional security staff to the Justice Department with handcuffs for Holder. But that’s never been used in modern times and no one is talking about it now.
Further, the committee’s focus on the botched “Fast and Furious” Treasury Department investigation in Arizona into gun-trafficking by Mexican drug cartels appears to be a hoked-up political stunt to embarrass Holder. The Republican-led committee shows no signs of interest in scores of other scandals, many of them appalling bipartisan injustices we have reported through the years. Even regarding the “Fast and Furious” probe, the committee reportedly focuses primarily on documents after the probe started it believes will embarrass Holder, a close friend of President Obama.
As for the Obama administration, its assertion of Executive Privilege for first time is crass politics and an additional sell-out of President Obama’s campaign theme of openness.
Further, a few moments of historical reflection shows that the entire debate is charade, designed to score short-term political points. Roles and arguments are entirely reversed from 2007-2008, when Democrats controlled the House and Republicans controlled the White House and Justice Department. House Democrats then made a big show of demanding documents and testimony from White House advisors Karl Rove and Harriet Miers pertaining to the 2006 White House purge of U.S. attorneys.
The White House resisted on Executive Privilege grounds until a brokered deal in 2009 between the Obama White House, Bush representatives and Judiciary Committee permitted limited questioning of Rove and Miers by a special House team in July 2009. The inside story is that this enabled a whitewash of the scandal that still percolates with the dubious prosecutions of those, such as former Alabama Gov. Don Siegelman.
Perhaps most shocking is that so-called “Executive Privilege” is a relatively recent concept created without strong Constitutional foundation -- and abused by both parties to enforce ever-growing secrecy by the ever-more-powerful Executive Branch.
Conventional wisdom is that government’s most important powers and checks-and-balances derive from the Constitution and law duly created under its provisions. That was my theme in an interview with Tommy Tucker, left, the hard-hitting WWL AM/FM morning show host based in New Orleans. The show is nationally available by weblink, Tommy talks to Andrew Kreig. But White House assertions of new secrecy powers under the so-called “privilege” began only tentatively under the GOP Eisenhower administration in the 1950s, with a total of just five such assertions during the Democratic Kennedy and Johnson Presidencies. The eminent investigative reporter Clark Mollenhoff of the Des Moines Register wrote that no such privilege existed.
Especially because of the Watergate scandal, the secrecy-obsessed President Nixon made 14 claims of the privilege, which the Senate and House considered to varying degrees.
In 1974, Harvard Law professor Raoul Berger published Executive Privilege: A Constitutional Myth, which I reviewed for the Hartford Courant and still use for reference. My review began in words highly relevant for this week's news:
The President’s claim of Constitution authority to withhold information from Congress….is a myth” says the first sentence of this timely and exhaustively researched study.No leader of either party wants to admit what’s really going on: They secretly like expanding Executive Privilege, which is a vital tool to hide secrets when their party assumes the vast powers of the White House.
Meanwhile, each sees (perhaps wrongly) short-time political advantage in hoked-up disputes regarding the contempt of Congress vote scheduled next week targeting Holder. He’s a long-time scandal cover-up artist and political back-scratcher dating from his tenure in the Clinton administration. So, he deserves scant pity, as I wrote earlier this month here.
Any public concern about the current crisis over “contempt” is better focused on the vast number of other problems at the Justice Department and elsewhere that Congress and the Obama administration are neglecting.
In sum, this week's news recalls the story -- probably apocryphal but more true than "real-life" nonetheless -- of a pompous judge who believed he was not being given appropriate respect by a litigant. So the judge summoned the attorney to the front of the courtroom to answer a rebuke:
Judge: Are you trying to show contempt of this court?
Litigant: No, Your Honor. I’m trying my best to hide it.
The larger lesson is that these officials, try as they might, cannot fool all of the people all of the time.
Related News Coverage
Update: Washington Post, Legislators traded million in stocks they could impact, Dan Keating, Davis S. Fallis, Kimberly Kindy, and Scott Higham, June 23, 2012. One-hundred-thirty members of Congress or their families have traded stocks collectively worth hundreds of millions of dollars in companies lobbying on bills that came before their committees, a practice that is permitted under current ethics rules, a Washington Post analysis has found. The lawmakers bought and sold a total of between $85 million and $218 million in 323 companies registered to lobby on legislation that appeared before them, according to an examination of all 45,000 individual congressional stock transactions contained in computerized financial disclosure data from 2007 to 2010. Almost one in every eight trades — 5,531 — intersected with legislation. The 130 lawmakers traded stocks or bonds in companies as bills passed through their committees or while Congress was still considering the legislation. The party affiliation of the lawmakers was almost evenly split between Democrats and Republicans, 68 to 62.
Washington Post, White House, GOP dig in for battle over Holder probe, David Nakamura and Ed O’Keefe, June 21, 2012. A day after a congressional committee recommended that the House hold the nation’s attorney general in contempt in connection with an investigation of a botched federal gun-running operation, the White House and its Republican rivals sought to position themselves as the principled parties in a high-stakes game of election-year brinkmanship. The White House suggested Thursday that it would abandon negotiations over the release of documents related to the operation until GOP lawmakers stop trying to embarrass President Obama. And Republican leaders insisted that they are prepared to move forward with a contempt vote in the House next week in an effort to get to “the truth for the American people,” said Speaker John A. Boehner (Ohio).
Washington Post, Committee calls for contempt vote on Holder, Sari Horwitz, Peter Wallsten and Ed O’Keefe, June 20, 2012. A congressional committee voted Wednesday to recommend that Attorney General Eric H. Holder Jr. be held in contempt after the Obama administration, citing executive privilege for the first time, refused to turn over documents pertaining to a botched gun-trafficking operation. The party-line vote at a marathon session of the House Oversight and Government Reform Committee intensified a feud between the Obama administration and Republican lawmakers and dealt an embarrassing blow to the nation’s highest-ranking law enforcement official. In a statement, Holder called the vote “an extraordinary, unprecedented and entirely unnecessary action, intended to provoke an avoidable conflict between Congress and the Executive Branch.”
“It’s an election-year tactic intended to distract attention — and, as a result — has deflected critical resources from fulfilling what remains my top priority at the Department of Justice: Protecting the American people,” he added. The vote against Holder marks only the third time in 30 years that a congressional panel has held an attorney general in contempt. At Wednesday’s often-heated hearing, Republicans railed against the former judge and U.S. attorney, accusing him of repeatedly stonewalling them in their investigation. Democrats blasted the GOP for allowing the dispute to devolve into personal attacks against Holder. At its core, the conflict centers on a particular set of documents that the oversight committee’s chairman, Rep. Darrell Issa (R-Calif.), subpoenaed from the Justice Department in October for the investigation he launched into Operation Fast and Furious in the spring of last year.
Justice Integrity Project, Obama, Holder Merit Scant Pity After GOP Attacks on DOJ, Andrew Kreig, June 13, 2012. Led by Holder, the Obama administration has whitewashed bogus Bush-era political prosecutions in Alabama, New Jersey, North Carolina and elsewhere. Also, it has crushed civil rights protections for torture victims and other detainees and whistleblowers. Further, it has fostered an unprecedented war on news reporters such as James Risen of the New York Times covering such matters. The DOJ's overall strategy clearly came from high levels at the White House. Why, therefore, should civil rights advocates grieve if Republicans hound Holder and snipe at the White House?
Weekly Standard, Retiring Dem: 'The People Have Gotten Dumber,' Daniel Halpers, June 21, 2012. Retiring congressman Gary Ackerman, a Democrat from New York, reflects on his time in Congress. "Congressman Ackerman, you’ve been here 30 years. Can you define comity as it existed when you arrived versus how it exists now?," Bloomberg Businessweek asks. Ackerman responds: " Your premise is that comity exists now. It may not be entirely accurate. It used to be you had real friends on the other side of the aisle. It’s not like that anymore. Society has changed. The public is to blame as well. I think the people have gotten dumber. I don’t know that I would’ve said that out loud pre-my announcement that I was going to be leaving. [Laughter] But I think that’s true. I mean everything has changed. The media has changed. We now give broadcast licenses to philosophies instead of people. People get confused and think there is no difference between news and entertainment. People who project themselves as journalists on television don’t know the first thing about journalism. They are just there stirring up a hockey game."
Washington Post, Eric Holder asks President Obama to assert executive privilege, Chris Cillizza, June 20, 2012. Attorney General Eric Holder on Wednesday became the first Obama administration official to be held in contempt by a congressional panel.
Washington Post, Republicans’ attempt to hold Holder in contempt is uphill battle, Dana Milbank, June 20, 2012. There is something charmingly futile about House Republicans’ move to hold Attorney General Eric Holder in contempt of Congress. Even if the full House follows the Committee on Oversight and Government Reform’s vote Wednesday to hold him in contempt, the decision about whether to prosecute him will be left to a Justice Department run by . . . Eric Holder. In deciding whether to prosecute himself, Holder would have to consider whether there are enough prison cells to incarcerate all the other people who are contemptuous of Congress in a country.
Huffington Post, Nancy Pelosi Says Contempt Vote Against Eric Holder Is Really About Voter Suppression, Jennifer Bendery, June 21, 2012. House Minority Leader Nancy Pelosi (D-Calif.) made a bold accusation on Thursday about what is driving Republicans to hold Attorney General Eric Holder in contempt of Congress: a desire to suppress Democratic voters in November. House Speaker John Boehner (R-Ohio) was asked to respond to the voter suppression charge at his weekly briefing, but he declined.
CBS 60 Minutes, Insiders:The road to the STOCK Act, Steve Kroft, June 17, 2012. Steve Kroft reports on how America's lawmakers could legally buy stock based on non-public information simply because they wouldn't pass a law against themselves - a law they finally passed after this story first ran. Ira Rosen and Gabrielle Schonder are the producers.
OpEd News, Election Fraud in Egypt, Michel Collins, June 21, 2012. The Egyptian presidential election was rigged to produce a winner that the military could manipulate. After removing the two leaders from the ballot, the military engineered an election that had only 15% turnout and no legitimacy. It is an example of pure election fraud. One goal of Egypt's 2010 union inspired Tahrir Square protests was fulfilled during the December, 2011 parliamentary elections. Nearly 65% of the nation's fifty million eligible voters turned out to vote. Turnout for the June 16 and 17, 2012 presidential election dropped to an estimated 15%* according to local and press observers. What happened? Three factors contributed to the exponential decline in voting. Egypt's courts took leading candidates off of the final presidential ballot. The disappeared candidates had the support of 68% of the electorate according to a major preelection poll in early May. Egyptian courts also disqualified one third of the recently elected parliament. Just a day before the election, military commander Mohamed Hussein Tantawi announced that the constitution had been annexed. This was a nice way of saying that the military was assuming most of the powers of the presidency, leaving the newly elected chief executive with little to do. The entire foundation of the election vanished in plain sight. There was no point in voting. The preelection actions by the courts and military represented the most fundamental form of election fraud by making the elections meaningless.
Catching Our Attention on other Justice, Media & Integrity Issues
Houston Chronicle / Chron.com, Air Force base commander removed amid sex scandal, Sig Christenson, June 21, 2012. The Air Force on Wednesday relieved the commander of a basic training squadron in which three instructors have been accused of illicit sexual contact with recruits. Lt. Col. Mike Paquette lost his position as commander of the 331st Training Squadron at Joint Base San Antonio-Lackland. An Air Force lawyer said the decision by Col. Eric Axelbank, commander of the 37th Training Wing, wasn't driven by disciplinary violations or misconduct allegations. "Col. Axelbank, based upon a whole bunch of factors, has lost confidence in (Paquette's) ability to lead that squadron, and he has removed him," said Col. Polly Kenny, staff judge advocate for the 2nd Air Force. The dismissal of Paquette, who did not respond to requests for comment, is the latest development in a growing sex scandal involving instructors on the base. Four instructors have been accused of improper sexual contact with recruits in basic and technical training. One of the four, Staff Sgt. Luis A. Walker, accused of having sexual contact with 10 women and raping one of them, could face life in prison. A former staff sergeant, Peter Vega-Maldonado, admitted that he had sexual contact with 10 women.
AlterNet, Outrageous: Security Agency Won't Release Number of Americans it Spied On Because it Would "Violate Their Privacy, Alyssa Figueroa,June 20, 2012. Last month, Democratic Senators Ron Wydon and Mark Udall asked the National Security Agency how many U.S. residents were spied on under Bush’s 2008 expansion of the Foreign Intelligence Surveillance Act, which allowed for warrantless eavesdropping. But on Monday, the agency told the Senators that they couldn't know how many Americans it spied on because that kind of oversight would violate people’s privacy. Wired.com acquired Charles McCullough’s response to the two senators, who are members of the Senate’s Intelligence Oversight Committee. McCullough, Inspector General of the Office of the Director of National Intelligence, wrote that the NSA “agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons.” Wyden said that he and Udall simply wanted a “ballpark estimate” of the number. But McCullough wrote that the agency was incapable of providing such a number, and an attempt to calculate the number would hamper intelligence missions.
Salon, Assange asks Ecuador for asylum, Glenn Greenwald, June 19, 2012. The WikiLeaks founder is motivated by one thing: a desire to avoid extradition to the U.S. Can anyone blame him? Julian Assange was scheduled within days to turn himself over to British authorities for extradition to Sweden, where he is wanted for questioning in connection with a sexual assault case in which he has never been charged. Instead, Assange earlier today went to the Embassy of Ecuador in London and sought asylum from that country under the Universal Declaration of Human Rights. Assange has been fighting extradition to Sweden for a year-and-a-half now, during which time he has been under house arrest. He has never been charged with any crime in Sweden, but a prosecutor from that country is seeking his extradition to question him. After the British High Court ruled against him by a 5-2 vote earlier this month, and then refused to re-hear the case last week, his appeals in Britain contesting the extradition are exhausted. Assange’s resolve to avoid extradition to Sweden has nothing to do with a reluctance to face possible sex assault charges there. His concern all along has been that once he’s in Swedish custody, he will far more easily be extradited to the U.S.
Dan Froomkin, Karl Rove: Too Clever For His Own Good With Crossroads GPS Secrecy? Huffington Post, June 20, 2012. Measures that secretive political groups keep coming up with to avoid disclosing donors may eventually backfire, Rep. Chris Van Hollen (D-Md.) said Wednesday. "These organizations are doing all sorts of gymnastics to try to prevent voters from knowing the sources of their funding," Van Hollen said at a conference on "Shadow Money" hosted by the Center for Responsive Politics. "I think they're already becoming too clever for their own good."
FireDogLake, Holder’s DoJ Must Focus on Real Criminals Now, Teddy Partridge, June 18, 2012. Bank looters, pension stealers, and widow robbers run rampant through our Republic. So one hopes Eric Holder’s Justice Department will now focus its attention on the real crimes ruining America. They aren’t committed by baseball players lying to Congress — coals to Newcastle if ever I heard of it! — or heiresses paying hush money to a Presidential candidate’s mistress. These aren’t crimes; they are E! Entertainment News and Entertainment Tonight! fodder, not crimes worthy of federal resources ladled upon them in the millions of dollars. Enough with the circuses! Utter lawlessness abounds throughout the land — in voter disenfranchisement, mortgage securitization and foreclosure fraud, depradation of our precious natural world, and utter bribery of public officials by faceless forces of wealth.Will Eric Holder please direct the efforts of his many attorneys to real problems plaguing real American people?
Washington Post, Families see their wealth sapped, Ylan Q. Mui, June 11, 2012. The recent recession wiped out nearly two decades of Americans’ wealth, according to government data released Monday, with middle-class families bearing the brunt of the decline...“It’s hard to overstate how serious the collapse in the economy was,” said Mark Zandi, chief economist for Moody’s Analytics. “We were in free fall.” The recession caused the greatest upheaval among the middle class. Only roughly half of middle-class Americans remained on the same economic rung during the downturn, the Fed found. Their median net worth — the value of assets such as homes, automobiles and stocks minus any debt — suffered the biggest drops.