Justice won't pursue Holder case

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U.S. Attorney General Eric Holder with Mayor Nutter at the news conference. The grant covers salary and benefits for three years. (Alejandro A. Alvarez / Staff Photographer)

Originally published June 30, 2012.

WASHINGTON - The Justice Department declared Friday that Attorney General Eric H. Holder Jr.'s decision to withhold information about a bungled gun-tracking operation from Congress does not constitute a crime and he won't be prosecuted for contempt of Congress.

The House voted Thursday afternoon to find Holder in criminal and civil contempt for refusing to turn over the documents. President Obama had invoked his executive privilege authority and ordered Holder not to turn over materials about executive branch deliberations and internal recommendations.

In a letter to House Speaker John A. Boehner, the department said that it will not bring the congressional contempt citation against Holder to a federal grand jury and that it will take no other action to prosecute the attorney general. Dated Thursday, the letter was released Friday.

Deputy Attorney General James Cole said the decision is in line with long-standing Justice Department practice across administrations of both political parties.

"We will not prosecute an executive branch official under the contempt of Congress statute for withholding subpoenaed documents pursuant to a presidential assertion of executive privilege," Cole wrote.

In its letter, the department relied in large part on a Justice Department legal opinion crafted during Republican Ronald Reagan's presidency.

Frederick Hill, the spokesman for Rep. Darrell Issa (R., Calif.), said it is regrettable that "the political leadership of the Justice Department" is taking that position. Issa, who chairs the House Oversight and Government Reform Committee, is leading the effort to get the material related to Operation Fast and Furious.

Although the House voted Thursday to find Holder in criminal and civil contempt, Republicans probably are still a long way from obtaining documents they want for their inquiry into the operation, a flawed gun-tracking probe focused on Phoenix-area gun shops by Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives.

The criminal path is now closed and the civil route through the courts would not be resolved anytime soon.

"This is pure politics," White House spokesman Jay Carney said.

"Remarkably, the chairman of the committee involved here has asserted that he has no evidence that the attorney general knew of Operation Fast and Furious or did anything but take the right action when he learned of it.

"No evidence, so if you have no evidence as he has stated now about the White House and the attorney general, what else could this be but politics?"

More than 100 Democrats walked out of the House chamber to boycott the first of two contempt votes, saying Republicans were more interested in shameful election-year politics than documents.

Republicans demanded the documents for an ongoing investigation, but their arguments focused more on the need for closure for the family of slain Border Patrol agent Brian Terry. Two guns identified by the Fast and Furious tracking operation were found near his body after a shootout in Arizona.

Democrats promised closure as well, but said a less-partisan Republican investigation was the only way to get it.

Adding to the emotion of the day, the family of the slain agent issued a statement backing the Republicans: "The Terry family takes no pleasure in the contempt vote against Attorney General Eric Holder. Such a vote should not have been necessary. The Justice Department should have released the documents related to Fast and Furious months ago," the statement said.

Issa's committee will consult with the House counsel's office about a court challenge to the administration's decision not to cooperate, spokesman Frederick Hill said.