A contempt citation by the full House in the Fast and Furious investigation… (Chip Somodevilla, Getty…)
WASHINGTON — The last time he testified on Capitol Hill, Atty. Gen. Eric H. Holder Jr. struggled to predict how his legacy would be written. "What my future holds," he said, "frankly, I'm just not sure."
The Republican-led House will vote Thursday on whether to find him in contempt of Congress for ignoring a congressional subpoena for documents in Fast and Furious, the federal law enforcement operation that allowed firearms to circulate among criminals on both sides of the Southwest border.
It would be the first time a sitting Cabinet member has ever been held in contempt of Congress.
Though Holder and the White House call it partisan politics, and the president has asserted executive privilege in refusing to turn over the documents, the contempt citation would stand beside a series of setbacks for Holder — defeats in the John Edwards and Roger Clemens criminal trials, his retreat from trying Sept. 11 conspirators in a civilian courthouse and the decision to keep open the military prison for terrorism suspects at Guantanamo Bay, Cuba.
Fast and Furious and the other setbacks have made Holder a lightning rod for conservative critics who probably will point to him in the fall presidential campaign to brand the Obama administration as arrogant, secretive and inept. It also will energize calls for Holder to step down, though few Washington observers expect him to stay for a second term even if President Obama is reelected.
But Holder's achievements have been many too, despite his troubled tenure. His department has secured convictions in several key terrorism-related cases; mounted vigorous attacks on healthcare, mortgage and consumer fraud; and pushed civil rights investigations against local police departments, including in New Orleans and Phoenix.
In the Senate, controlled by Democrats, his biggest champion is Patrick J. Leahy of Vermont, who chairs the Judiciary Committee. Leahy has largely ignored Fast and Furious, and prefers instead to bring up issues such as the national crime rate, which has dropped under Holder despite the continuing economic crisis.
"Many expected violent crime to explode," Leahy said recently. "Normally it would have. But the department has had historic success in keeping our communities safe from crime."
On the House side, Rep. Lamar Smith (R-Texas), chairman of the Judiciary Committee, issued a report not only castigating Holder for Fast and Furious, but also accusing him of pushing "a liberal agenda" that included challenging an Arizona anti-immigration law and voter identification laws. "He promised that under his leadership the Department of Justice would be free from partisanship," Smith said. "The reality has been different."
House Oversight and Government Reform Committee Chairman Darrell Issa (R-Vista), in a last-ditch effort to obtain the documents and forestall the contempt vote, wrote Obama on Monday saying he remained "hopeful" that the committee and Holder "can work toward resolving this matter short of a contempt citation."
Attorneys general in recent years have almost all been sharply criticized by the opposing political party. Janet Reno, in the Clinton administration, was criticized for refusing to appoint an independent counsel to investigate illegal contributions to the Clinton-Gore reelection campaign and was herself cited for contempt of Congress for refusing to hand over documents to the same House committee now pursuing Holder. The full House never voted on the matter.
During the George W. Bush years, there were outcries over John Ashcroft's terrorism investigations and Alberto Gonzales' firing of half a dozen U.S. attorneys.
The criticism is all the more intense when the attorney general is particularly close to the president, as Holder is to Obama, and Gonzales was to Bush.
"If the attorney general is viewed as having any relationship with the president, it makes a very inviting target for his opponents," Gonzales said in an interview this week. "That's wrong, and that's very unfortunate."
Gonzales said he understood why Obama asserted executive privilege just moments before the House Committee on Oversight and Government Reform passed its contempt resolution last week. "You don't want to insert the president into a mess unless you have to," he said. "You always try to let the Cabinet member work it out first. That just didn't happen here."
Mark Corallo, who has worked for the House oversight committee and as a top aide in Bush's Justice Department, said that Holder was "playing a dangerous game" in not reaching a compromise with House Republicans.
But Stephen Ryan, a Washington lawyer who once served as general counsel for a Democratic-run Senate Governmental Affairs Committee, said it was the House committee that would not negotiate. He called Holder "the type who avoids confrontations with the Congress, who's intelligent enough and has no streak of ideological warfare in his bloodstream to want a fight like this."
Yet this time, he said, Holder and the administration should have found a way to avoid a contempt vote. "It's always in the executive branch's interest, always, to resolve these before it gets to the House floor," Ryan said. "In every single case, it's better if you can resolve it."