Tired of 'Fast and Furious' stonewalling: Inside Congress' case for contempt against Attorney General Holder

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This is a rush transcript from "On the Record," May 3, 2012. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Right now, making the case for contempt, House Republicans turning up the heat on Attorney General Eric Holder. And today, Oversight and Government Reform Committee chair Darrell Issa sending out a 64-page draft contempt order against the attorney general. The draft calls his stonewalling over Operation Fast and Furious "inexcusable." But that's only part of it.

And tonight, the Justice Department already firing back, Deputy Attorney General James Cole writing a letter to Congressman Issa saying, in part, "The committee, in our view, has not taken sufficient steps to define the categories of documents it deems essential to its review of Fast and Furious, and its decision to issue a draft contempt citation appears to express a preference for confrontation over resolution."

So how close is Attorney General Holder to being held in contempt? Congressman Dan Burton is on the oversight committee. He joins us. Good evening, sir.

So I have the 64-page draft from Congressman Issa. I'm curious, how close is this to actually having contempt of the attorney general?

REP. DAN BURTON, R-IN: I think that if Darrell could reach some kind of an agreement or understanding with the attorney general, I think he would hold off. But he's been waiting and waiting and waiting. We've asked for 22 reports, dealing with Fast and Furious. I think we received 12 of them, and those are only part -- partially complete.

And so I think Darrell's been very, very patient. He's done everything possible to work with the Justice Department. But they're not complying.

VAN SUSTEREN: All right, the Justice Department, James Cole, says that the reason why they're not complying -- at least, this is what they say in the letter -- is because there's an ongoing criminal investigation and they don't want to jeopardize the investigation by surrendering any documents to you until it's over. You laugh?

BURTON: Well, I laugh because when I was chairman of the Government Reform and Oversight and the attorney general then, the assistant to Janet Reno, we had the same problem getting documents. So it's a constant response that you get.

The fact of the matter is, the committee wants to make sure that they don't do anything to jeopardize a criminal investigation, but at the same time, the Justice Department said one thing and then 10 months later said another. And Darrell Issa, as I said before, has been very patient as chairman.

And I think that we want to get to the bottom of this because we were seeing thousands of weapons, AK-47s and other things, going across the border. One killed a border agent, an American border agent, and it's killed a lot of other people down there in Mexico.

And we need to find out why this program started in the first place, who started it, why they started it. And we've even had some of the agents, like Mr. Alt, who's an agent, who testified, and he was intimidated by the Justice Department a short time later over a minor infraction. And they're driving him crazy over there because he was a whistleblower.

VAN SUSTEREN: Well, in terms of the -- denying it, they -- when this first broke, they denied everything. And then about 10 months later...

BURTON: Right.

VAN SUSTEREN: ... they sent Congress a new letter saying, Oops, the previously written denial was sent essentially in error. I'm curious, is there any vehicle in Congress where you could review the documents that they say is part of a criminal investigation -- review them privately? In the court, we call it in camera. Could you do that under seal of some sort so that there could be some sort of way that you could actually see the documents and not risk the -- jeopardize the investigation?

BURTON: Yes, we did that before, when I was chairman. We were over at the Ford Building, which was one of the annexes that we used. And we had our legal staff and a few members go over there and go through documents that were very sensitive.

And I think that Darrell understands that. He's willing to go that extra mile. But to keep us from getting those documents, to keep the committee and our legal staff from getting them, to stonewall us like they have for 10 months and then lie at beginning -- and I think they did mislead us...

VAN SUSTEREN: So you don't think it was an accident. You think they lied.

BURTON: No, no, no, no. I'm sure it was -- I think they misled us on purpose.

VAN SUSTEREN: Misled or lied?

BURTON: Lied.

VAN SUSTEREN: OK.

BURTON: And then -- and then -- I'm not afraid to use that term. And then 10 months later come back and say, Oops, you know, we -- we made a mistake.

VAN SUSTEREN: Well, he's what I don't understand. I mean, I know there's this big fuss over all these documents. But it seems to me there really are important questions. Who authorized it? Who's the highest person who authorized it? Who's the highest person who knew about it? And are those two people still working in government?

Because the government himself, even -- I mean, even -- even in this letter today from the deputy attorney general, they admit that it was, quote, a "flawed" -- or something -- they -- I mean, they -- they -- "inappropriate tactics" is the way they day say it. I mean, it's a really bad investigation, bad idea.

And I wonder if the people who are -- who made the bad decisions or approved it or knew about it are still working in government. So I would think just those answers would be easy to get.

BURTON: I think it was the attorney general himself, personally.

VAN SUSTEREN: Well, have you -- have you put the question right to him? Did you authorize it? I mean, isn't that the question? He either says yes or no.

BURTON: Well, Darrell's the one that's been making the overtures to the attorney general. I'm not chairman any longer. But the fact of the matter is, I have a history that goes back a long way with the current attorney general. And he misled our committee on two separate occasions, I believe.

VAN SUSTEREN: Well, I would...

BURTON: And I think this is one of the modus operandis of this gentleman.

VAN SUSTEREN: I don't -- I don't -- I think that he -- I think that he is not answering the question this time. I will say I also have experience with Attorney General Holder when he was a judge, and a very well respected judge. So I mean, I have a different experience than you do with him. And I mean, I have nothing but respect. However, I do think he should answer those questions now, you know, who authorized it and who knew about it, how high?

BURTON: I think you're absolutely correct. And I think he should do that. And if he would move in that direction, I'm confident that Darrell would not push forward with a contempt citation.

VAN SUSTEREN: Is Speaker Boehner on board, in the event that those documents are not surrendered and Congressman Issa wants to go forward, is Speaker Boehner, he say, Yes, let's go ahead?

BURTON: We're in a political year. I think that the speaker and the majority leader would rather that this wouldn't be on the front burner. But I think they will give their assent if the Justice Department does not comply.

VAN SUSTEREN: Is that a yes?

BURTON: Yes, I think it's a yes.

(LAUGHTER)

VAN SUSTEREN: OK, it's a yes. Anyway, Congressman, thank you, sir.

BURTON: Thank you very much, Greta.