Eric Holder, Contempt of Congress, and Fast and Furious: What You Need to Know

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The scandal that started it, how executive privilege works, and what might come next in the House investigation

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Attorney General Eric Holder testifies at a February House hearing about Fast and Furious. (Reuters)

What is Fast and Furious?

For years, the U.S. government ran an elaborate "gunwalking" operation on the Mexican border. It was a high-stakes sting operation in which the Bureau of Alcohol, Tobacco, Firearms and Explosives -- a part of the Justice Department -- opted not to stop purchases of weapons that it suspected were intended for smuggling across the border by traffickers. The goal was to let "straw buyers" purchase the guns and move them to large-scale traffickers, but to stop the weapons before they moved across the border. It's a method that law enforcement agencies have used for some time -- the ATF was doing it at least as far back as 2006. The specific operation called "Fast and Furious" dates to 2009 and was apparently initiated by an ATF agent in Phoenix.

Did it work?

Not really -- Justice can't point to a single instance of a major boss the operation took down. But as one might imagine, the ATF was unable to keep track of all of the guns. In fact, the agency managed to lose track of some 2,000 guns. Those weapons were later connected to various violent crimes. Most notably, two were found at the scene after a Border Patrol agent named Brian Terry was killed in a firefight on December 10, 2010 with suspected illegal immigrants in Arizona (it's unclear whether one of the guns fired the bullet that killed him). Reports following that murder revealed that the guns had been part of a tracking operation.

Is anyone defending Fast and Furious?

Not really. In early 2011, the Justice Department wrote in a letter to Congress that no guns had been intentionally allowed to "walk," which it says was based on statements from ATF officials. That letter was retracted when it became clear that it was wrong. There's now a consensus that the operation was botched, but two questions remain. First, who approved it -- was Fast and Furious the work of a rogue ATF, or did Attorney General Eric Holder (or perhaps even President Obama) know of or approve it? Second, has there been an attempt to mislead Congress about the operation through a cover-up? On the first question, the department insists that only the ATF's Phoenix office approved the sting. At some point, however, the U.S. Attorney in Phoenix became aware, as did the acting director of the ATF. Both were forced to resign in August 2011 after Issa uncovered emails showing they'd been briefed. Justice says it's not trying to cover anything up, noting that it has turned over 7,600 documents and that Holder has testified before Congress nine times about Fast and Furious.

What happened Wednesday?

Darrell Issa, a California Republican who heads the House Oversight and Government Committee, has been demanding further documents and threatening to try to hold the attorney general in contempt of Congress if he didn't turn them over (more on that later). So Wednesday morning, acting on Holder's request, Obama asserted executive privilege in response to a request from Holder. In a letter to Obama, Holder argues that the documents Issa is requesting aren't really related to Fast and Furious, since they post-date it, and that releasing them would compromise confidentiality within the executive branch. The letter came after negotiations late Tuesday -- in which Holder offered to release some documents in return for dropping the contempt proceedings -- failed. Issa, however, was unswayed by Obama's assertion and went forward with a vote in the Oversight Committee. The committee voted in favor of holding Holder in contempt by a 23-17 margin, along party lines.

What does executive privilege mean?

The phrase refers to a president's right to a certain degree of confidentiality in his decision-making, but what it means in practice is sort of hazy. It has long been an accepted concept, but since it's not spelled out anywhere in the Constitution or elsewhere, it's not clear how sweeping that right is, and who it covers: only the president? Communications between the president and advisers? Cabinet members? Typically, politicians have tried to keep executive privilege questions out of court, which has kept its boundaries vague. For much, much more, read this Associated Press explainer and this Congressional Research Service report.

Is the executive privilege claim unprecedented?

No, but it is unusual. The Obama White House has never before claimed executive privilege. George W. Bush used it six times, Bill Clinton four, and George H.W. Bush once. It's also somewhat problematic for Obama. As Conor Friedersdorf points out, candidate Obama criticized its invocation by the Bush Administration, when it was used, for example, to try to cover up the political firings of U.S. Attorneys. It's also a little unclear how the documents are too sensitive to hand over if Holder was indeed willing to trade them for dropping the contempt proceeding.

What does it mean if Congress holds Eric Holder in contempt?

For the record, he's not yet in contempt -- the full House has to vote, which would happen next week. (Before you make that joke about how polls show the rest of America already holds Congress in contempt, stop. It's been made a million times already.) It would also be an unusual move. In fact, a sitting attorney general has never been held in contempt; in 1998, the Oversight Committee recommended that Janet Reno be held in contempt, but the recommendation was never brought to a vote of the entire House. But the move is largely symbolic. As Dana Milbank pointed out today, the person who would have to prosecute Holder for refusing to cooperate with Congress would be ... the attorney general, Eric Holder.

What are the politics here?

If you're just hearing about Fast and Furious this week, you probably don't read much conservative media. Although some of the big scoops in the case have come from major newspapers and the Associated Press, it has really been a cause celebre in partisan outlets like Fox News and the Daily Caller, where Holder is seen as one of the principal villains of the Obama Administration. Issa, who took over the committee in 2011 amid hyperbolic claims that the Obama White House was "one of the most corrupt administrations" in history, hasn't delivered any major scalps, so he's eager for a major win. There is a strong whiff of election-year fishing to this case, a point Holder made in a statement responding to the Oversight Committee vote.

But as Conor Friedersdorf points out, just because an investigation is politically motivated doesn't mean it won't find real wrongdoing. Presumably, there's something in the withheld documents that Holder doesn't want to make public -- not necessarily legal wrongdoing, but perhaps something that would look bad for him or Obama. By asserting executive privilege, the Obama Administration is doubling down. The White House is standing behind Holder, and bringing the president more directly into the matter than he has been before. Obama is gambling that the executive privilege claim will hold, and that he won't be massively embarrassed before November. On the other hand, the story has now irreversibly broken from the partisan fringes into the mainstream, and his action will almost certainly be fodder for attacks throughout the presidential campaign.

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David A. Graham

David Graham is a senior associate editor at The Atlantic, where he oversees the Politics Channel. He previously reported for Newsweek, The Wall Street Journal, and The National.

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