House panel cites Eric Holder for contempt. Will he go to jail?

There's a jail in the US Capitol, but it's not likely to hold Attorney General Holder anytime soon. The executive branch has many options to delay criminal proceedings, which require the Department of Justice to initiate.

A House committee has voted to hold Attorney General Eric Holder in contempt of Congress for failing to turn over documents related to the failed “Fast and Furious” gun law enforcement operation. Does that mean he now risks going to jail unless he complies with the document request?

Technically speaking, it’s possible he could end up in the slammer. But don’t hold your breath – it almost certainly isn’t going to happen. In the modern era, citing an administration official for contempt is often just a tactical maneuver in a larger Congress-White House dispute. It can put some added pressure on the administration, sure. But the executive branch has lots of ways to delay the resulting legal proceedings.

“Efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most circumstances,” concludes a newly issued Congressional Research Service report on Congress’s contempt power.

Just ask Nancy Pelosi. She was Speaker of the House in 2007 when the chamber issued a contempt citation against ex-White House counsel Harriet Miers. A lawsuit aimed at compelling Ms. Miers to produce documents pertaining to the mass firing of US attorneys by the Bush White House lasted past the end of the Bush administration itself.

Eventually the House received much of the information it wanted, and it agreed to dismiss the Miers suit. But by then,19 months had gone by, and a Democrat had won the Oval Office.

“The change in administrations and the passage of time could be said to have diminished the [House’s] ability to utilize the provided information to engage in effective oversight,” says the CRS report.

As for Attorney General Holder, he is not yet in contempt of the House. Yes, on Wednesday the House Oversight and Government Reform Committee voted along party lines to hold Holder in contempt. That’s a necessary step in the contempt procedure, but the citation can’t take effect until it is approved by the full House. House Speaker John Boehner indicated Wednesday that’s a step that may take place soon.

“While we had hoped it would not come to this, unless the Attorney General reevaluates his choice and supplies the promised documents, the House will vote to hold him in contempt next week,” said Speaker Boehner and House Majority Leader Eric Cantor (R) of Virginia in a joint statement.

The House Oversight panel has been probing who in the US government knew what, when about the botched Fast and Furious gun sting. Firearms linked to the operation have been implicated in the death of a US border agent.

The panel has subpoenaed thousands of Justice Department documents pertinent to the operation. Holder has declined to provide all that information – hence the contempt citation. On Wednesday, President Obama asserted that executive privilege allows the administration to withhold the documents, further complicating the situation.

Congress’s contempt power isn’t in the Constitution. (Neither is executive privilege.) But courts have long found it an implied power derived from the legislative branch's ability to investigate government operations.

If the House does hold Holder in contempt, it has an inherent power to send the sergeant-at-arms to arrest and incarcerate him until he complies. But that’s largely theoretical – it hasn’t been used since the Senate jailed a former Assistant Secretary of Commerce in 1934. It would be so inflammatory as to destroy relations between the two sides.

Under a 19^th century statue, the House and Senate can both pursue criminal cases against those held in contempt. But those cases are prosecuted by the Department of Justice. See the problem?  DoJ is unlikely to eagerly pursue itself. In any case, presidents faced with the issue have declared as a matter of policy that they will not proceed with such cases in the face of an administration claim of executive privilege.

That leaves civil proceedings. And civil proceedings take a long time – perhaps too much time to serve as a useful threat to a sitting president. Nor are civil penalties likely as frightening as jail to any administration official held in contempt.  

However, the “contempt” label could have meaning in the court of public opinion, and that may be the source of its modern power. It dramatizes the nature of a congressional-executive branch dispute and can express the real contempt of lawmakers for administration actions.