Written by Tom Fitton
Holder in Contempt of Congress
In all of the excitement/disappointment following the U.S. Supreme Court’s disastrous Obamacare decision last week (see background here), a remarkable development in the Obama administration’s “Fast and Furious” gun-running scandal got buried in the liberal press. But believe me when I say that this development was historic.
On Thursday, June 28 (the same day as the Obamacare ruling) the House of Representatives voted to hold Attorney General Eric Holder in contempt of Congress for failing to cooperate with the congressional investigation into the “Fast and Furious” gun-running scandal. It was the first time in history Congress has held a sitting Attorney General in contempt.
There were actually two votes. With the first, Congress voted 255-67 to hold Holder in contempt. (A number of Democrats joined the vote, while other Democrats, endorsing lawlessness, walked out in protest.) The second vote, 258-95, authorized the pursuit of records through civil litigation in the courts.
And that’s exactly where Congress is headed – to the courts – according to House Speaker John Boehner, per ABC News:
House Speaker John Boehner said today that Republicans are preparing to file a civil suit in an attempt to gain access to more information pertaining to the Justice Department’s botched Fast & Furious drug cartel gun tracking program.
The planned civil suit, which comes on the heels of a letter sent by the Justice Department stating that the DOJ would not prosecute Attorney General Eric Holder following a House vote to hold him in criminal contempt of Congress.
“It’s not clear to me that the U.S. District Attorney will in fact, go down that path. That’s why we’re going to file, in District Court, a civil suit, over the issue of executive privilege,” Boehner said on CBS’s “Face the Nation.”
While Congress is busy preparing its court filings, Senator Charles Grassley (R-IA), continued to pressure the Justice Department this week for information in a letter to AG Holder. Specifically, Senator Grassley is interested in an internal ATF memo sent February 3, 2012 to ATF headquarters and “possibly the Justice Department,” questioning the “Fast and Furious” program.
The timing of the memo is critical, as it was circulated one day before the Justice Department sent a lying letter to Senator Grassley denying the “gun-walking” program. (The memo was rescinded ten months later as DOJ officials were forced to admit that it was utterly false.) The key question now: Who received the memo and therefore had provable knowledge of the “Fast and Furious” program? Senator Grassley wants answers by July 17, 2012.
Unfortunately, “Fast and Furious” answers have thus far been in very short supply. And it certainly doesn’t help matters that Obama administration officials are reportedly threatening whistleblowers.
CBS News reported this week that Senator Grassley and Rep. Darrell Issa, Chairman of the House Committee on Oversight and Government Reform, are now investigating the treatment of two ATF “Fast and Furious” whistleblowers: “When the ATF whistleblowers, Special Agents John Dodson and Pete Forcelli, went public last year, Scot Thomasson headed up ATF Public Affairs. According to an eyewitness, Thomasson stated ‘We need to get whatever dirt we can on these guys (whistleblowers) and take them down.’ Now, Grassley and Issa say the agents have been put under the charge of ATF’s Scot Thomasson who is “Division Chief of the Firearms Operations Unit.”
So we can perhaps now add whistleblower intimidation to lying and stonewalling.
And it also doesn’t help when the President of the United States inappropriately invokes Executive Privilege to shield “Fast and Furious” records from Congressional investigators.
This extraordinary move by Obama, which came after AG Holder failed to strike a last minute deal before the contempt vote, raises significant questions about White House involvement in “Fast and Furious”. After all, Executive Privilege is reserved to “protect” White House records, not the records of every federal agency, which must be made available, subject to specific exceptions, under the Freedom of Information Act.
If the Obama White House was not involved in “Fast and Furious”, which is the Obama administration’s line, then under why is the President invoking Executive Privilege? One reason: to keep Eric Holder out of jail. The prosecution of Holder’s contempt now rests with longtime Obama campaign donor U.S. Attorney Ronald C. Machen Jr. Reportedly, the policy of the Justice Department is not to prosecute congressional contempt against officials who are withholding documents under Executive Privilege.
So Holder is personally facing criminal contempt for withholding documents. Rather than recuse himself from this issue, he sends a letter to Obama asking that executive privilege be invoked. Obama, or an official purporting to act on his behalf (James Cole, an underling of Holder(!)) obliges. Holder “saved.” Corrupt mission accomplished.
I’m only half-joking when I say that Congress will have more luck relying on Judicial Watch’s lawsuits on “Fast and Furious” documents now already filed in the courts.
As I mentioned two weeks ago, we recently filed a new FOIA lawsuit against ATF seeking access to records detailing communications between ATF officials and a White House official. (Click here for background and details.)
Eric Holder is a disgrace as Attorney General and should resign. And President Obama, too, should be held to account for inappropriately shielding Fast and Furious records from the public through Executive Privilege. How many dead bodies must pile up before Holder resigns or faces prosecution?
We’ve been investigating corruption in Washington now for nearly two decades. This is without a doubt one of the most serious scandals we’ve come across. And that is exactly why the Obama administration is fighting so hard to hold tight to any records regarding “Fast and Furious” secrets.
Speaking of keeping secrets…
Supreme Court Chief Justice John Roberts’ “yes” vote on Obamacare came as a complete shock to most court observers. And perennial swing voter Justice Kennedy’s spirited opposition to Obamacare raised more than a few eyebrows. But Justice Elena Kagan provided no surprises when she voted in favor of keeping the president’s socialist takeover of our nation’s healthcare the law of the land.
I say it’s no surprise, because, as you may recall, Judicial Watch uncovered evidence which suggests that, during Justice Kagan’s tenure as Solicitor General, the Office of the Solicitor General had been more involved in the legal defense of the Obamacare than had previously been disclosed. We also uncovered evidence that she enthusiastically supported the passage of Obamacare.
Consider this email from then-Deputy Solicitor General Neal Katyal to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, suggesting that Kagan wanted her office to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:
Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]
And then there was this March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe commenting excitedly on the passage of Obamacare: “I hear they have the votes Larry!! Simply amazing…” Tribe responds, “So healthcare is basically done! Remarkable.”
You can see how one might fairly conclude that Justice Kagan not only helped craft the defense of Obamacare, but also supported its passage.
Predictably as a result of Judicial Watch’s investigation, and the details we uncovered, many people called for Justice Kagan to recuse herself from the Obamacare lawsuit.
The key question, of course, was whether or not Justice Kagan could dispassionately evaluate the constitutional arguments at issue with Obamacare given that she herself may have helped craft the Obamacare defense. If a reasonable person can wonder, then it is most certainly cause for concern. After all, the recusal option is available for a reason, for even the appearance of bias undermines public confidence in the integrity of the courts.
(Justice Kagan evidently recognized this fact when she recused herself from hearing the Supreme Court’s SB 1070 case, presumably because of her duties as Solicitor General when the government filed its lawsuit against Arizona. But why is the Arizona SB 1070 litigation different from that involving Obamacare? That’s what we’d like to know.)
As you know, JW has been aggressive in trying to force the release of all of the details of Justice Kagan’s involvement in Obamacare discussions. Much of what the country, and Congress, knows about this issue as a direct result of the work done by our outstanding investigations team.
We don’t know what the American people would conclude after reviewing all of the evidence, but we believe the more information available the better. So we continue to fight for answers. But, as you might expect, the Obama administration has not been forthcoming. Neither has Justice Kagan. (I wrote to Justice Kagan in March on the eve of Supreme Court oral arguments over Obamacare asking her to disclose additional information and her reasons for participating in Obamacare. We have received no response.)
Attorney General Eric Holder has also chosen the cover up route, refusing to answer questions from the Senate Judiciary Committee on the matter in June, just before the Supreme Court issued its decision.
Per CNS News: “General Eric Holder has refused to provide written testimony to the Senate Judiciary Committee in response to ’questions for the record’ submitted to him by Sen. Jeff Sessions (R.-Ala.) that focus on Supreme Court Justice Elena Kagan’s involvement in the Patient Protection and Affordable Care Act–AKA Obamacare–while she was President Barack Obama’s solicitor general.”
Here are a few of the questions DOJ refuses to answer, according to CNS News:
Question: “Are you aware of any instances during Justice Kagan’s tenure as Solicitor General of the United States in which information related to the Patient Protection and Affordable Care Act and/or litigation related thereto was relayed or provided to her?”
Question: “When did your staff begin ‘removing’ Solicitor General Kagan from meetings in this matter? On what basis did you take this action? In what other matters was such action taken?”
Question: “Did you ever have a conversation with Justice Kagan regarding her recusal from matters before the Supreme Court related to the Patient Protection and Affordable Care Act? If so, please describe the circumstances and substance of those conversations.”
And Holder’s Justice Department is refusing to turn over key calendars of Kagan and her staff. As is typical, we had to sue to the Justice Department to force compliance with the law. In the meantime, we have to wait for the court process to work as the scandalous stonewall continues.
So, to summarize, last week the Supreme Court issued a highly controversial ruling affirming the constitutionality of Obamacare. Obama-appointed Justice Kagan provided a key vote saving Obamacare from constitutional oblivion. The Justice Department, Justice Kagan and the Obama White House continue to stonewall the release of records and facts on the matter, while refusing to answer very basic questions posed by Congress.
What do they have to hide?
To say this obfuscation and secrecy undermines public confidence in the High Court’s decision is an understatement. There will be an ethical cloud over the Supreme Court until this matter is cleared up.
Many citizens in the cities of Baltimore and Denver might be surprised to learn that they provided a “testing ground” for the Obama administration’s dangerous (and unlawful) policy of suspending the deportations of illegal aliens last year.
But that’s exactly what happened. And Judicial Watch has initiated an investigation of the matter. On June 11, we filed a Freedom of Information Act lawsuit against the Obama Department of Justice seeking records pertaining to this six-week pilot program designed to test the Obama administration’s new “standards” for the dismissal of immigration charges against certain illegal aliens. The Obama administration tested the program first in the cities of Baltimore, Maryland and Denver, Colorado beginning on December 4, 2011.
Here’s what we’re after specifically pursuant to our original November 23, 2011 FOIA request to the Executive Office of Immigration Review (“EOIR”), a component of the Justice Department:
i. Any and all records regarding, concerning or related to the six-week pilot program in Baltimore and Denver that is scheduled to begin on December 4, 2011 and under which the immigration-related charges against certain undocumented residents may be subject to dismissal. This request includes, but is not limited to, any and all policy guidelines, implementation plans, training materials, and directives regarding the pilot program.
ii. Any and all records of communication between any official, employee or representative of the Executive Office for Immigration Review and any official, employee or representative of any other government agency, office or department (including, but not limited to, the Department of Homeland Security, Immigration and Customs Enforcement, the Executive Office of the President, the City of Baltimore, and the City of Denver) regarding concerning or related to the pilot program.
The Justice Department acknowledged receiving our FOIA request on November 28, 2011 and was required by law to respond by January 11, 2012 at the latest. As of the date of our lawsuit, however, the Obama administration has failed to turn over any records responsive to the request, indicate which records are exempt from disclosure, or notify Judicial Watch when a response is forthcoming.
And so, we filed a lawsuit to prod them into action.
If you’ve been reading this space for some time, you know that this “suspended deportation” controversy has been unfolding now for over two years.
It all began on June 30, 2010, when John Morton, Director of Immigration and Customs Enforcement (ICE) sent a memo to all ICE employees instructing local immigration officials to use their discretion in “prioritizing” illegal immigration deportation cases. (The memo was leaked to the press and caused a massive uproar.)
On June 17, 2011, John Morton followed up with another memo to all field officers, special agents and to the chief counsel further defining the term “prosecutorial discretion,” which, in essence, asked immigration officials to focus deportation proceedings on illegal aliens convicted of crimes. However, Judicial Watch uncovered documents proving immigration officials considered suspending the deportation of illegal aliens convicted of violent crimes.
In November 2011, as reported by CNN, the Obama administration announced that on December 4, 2011 it would begin a pilot program in Baltimore and Denver to “test the process for reviewing cases pending before the immigration court.” Details regarding this program were sparse, prompting JW’s investigation.
The Obama administration has been playing games with its immigration policy from the beginning in its attempt to evade Congress and implement illegal alien amnesty. First Obama administration officials tried to implement stealth amnesty outside of the public eye, and then when the cat was out of the bag, they doubled down on the policy in open defiance of the law. (An alien who fails to register after 30 days with ICE and keep registration papers on their person is in criminal violation of the law – and can be jailed for up to 30 days – in addition to being deported. This administration is ignoring and condoning this mass criminality.) We know that any number of illegal aliens who receive “get out of jail free cards” from the Obama administration will go on to commit additional crimes, including murder. Obama’s stealth amnesty and sanctuary policies will result in the killing of innocent Americans as surely as night follows day.
And on Friday, June 15, 2012, the Obama administration doubled down again, announcing it would no longer deport unlawfully present immigrants under age 30 who came to the United States as children, a policy described by Politico’s Steve Friess as “a temporary, de facto implementation of a part of the stalled DREAM Act,” that sends “a loud message to Hispanic voters to remember Obama in November.”
The American people are tired of the obfuscation and gamesmanship from the Obama administration on such a serious issue: especially when they can plainly see this is all for political purposes. The message to the Obama administration is simple: No more secrecy. No more games. Obey the law. Release the records.
Until next week…
Judicial Watch, Inc., a conservative, non-partisan educational foundation, promotes transparency, accountability and integrity in government, politics and the law. Through its educational endeavors, Judicial Watch advocates high standards of ethics and morality in our nation’s public life and seeks to ensure that political and judicial officials do not abuse the powers entrusted to them by the American people. Judicial Watch fulfills its educational mission through litigation, investigations, and public outreach.
The motto of Judicial Watch is “Because no one is above the law”. To this end, Judicial Watch uses the open records or freedom of information laws and other tools to investigate and uncover misconduct by government officials and litigation to hold to account politicians and public officials who engage in corrupt activities.
SOURCE: Judicial Watch