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'Fast and Furious' goes slowly from House floor to the courtroom

House looks to file suit to force Justice Department to release more files related to botched gun running sting

 

This is a rush transcript from "On the Record," July 2, 2012. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: First the contempt vote, and now the lawsuit. Over the weekend House Speaker John Boehner answering questions about what is next in the contempt case against Attorney General Eric Holder.

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE: Do you expect that the justice department will bring suit against their own attorney general? And when will you file a lawsuit in federal court?

REP. JOHN BOEHNER, HOUSE SPEAKER: Well, we're going to go down both paths. It's not clear to me that the U.S. district attorney will in fact -- unless he recuses himself, will proceed down that path. That's why we're going to file in district court a civil suit over the issue of executive privilege.

NORAH O'DONNELL, CBS NEWS CORRESPONDENT: When will that be?

BOEHNER: I would expect that to come in the next several weeks.

(END VIDEO CLIP)

VAN SUSTEREN: What do Republicans hope the lawsuit will accomplish? House Oversight Committee member Congressman Trey Gowdy joins us. Good evening, sir.

REP. TREY GOWDY, R-S.C.: Good evening, Greta. How are you?

VAN SUSTEREN: Very well. So the speaker says in a couple of weeks that you'll go to federal court, essentially sue on the civil contempt that the House of Representatives has voted on. I'm curious, all the time people march contempt orders down to the court. What's the delay? It's only about three blocks.

GOWDY: I haven't fully given up on criminal contempt. And I know that sounds naive, but the Department of Justice said they're not going to pursue it. It's actually not their decision. The statute directs the U.S. attorney, and until he tells us that he's not going to go forward with criminal contempt, then that flicker of light still remains unextinguished.

If you look committee of judiciary versus Harriet Miers and Josh Bolton, it took about three weeks to get the pleadings filed and then about three months to get a resolution. And that's the only roadmap we have is that prior contempt under John Conyers' Judiciary Committee several years ago. So I think three weeks is a reasonable amount of time, and that's what the speaker we would take.

VAN SUSTEREN: I still don't get it. You're a former assistant United States attorney, but I would not see this as either/or. I would take both contempt citations, take one down to the U.S. district court three blocks away and sue on it and get that going. The Terry family has waited a year and a half. I guess the only thing to wait for is the Department of Justice decides to surrender the documents and avoid it. That would be one reason. I would also -- I'd push for the criminal contempt both times, putting pressure on my target. That's the way I would do it. Maybe you guys are more genteel than I am in litigation.

GOWDY: It's not a question you're a better lawyer than any of the members of the judiciary or oversight.

VAN SUSTEREN: I'll keep that one.

GOWDY: Sometimes when you pursue criminal charges, you are foreclosed from deposing people because they have a Fifth Amendment right not to participate. I mean, the O.J. Simpson case is a wonderful case. You can depots him civilly, but you can't in a criminal case. Pursuing both tracts, there's appeal to that in theory, but the reality is that you want to believe that criminal contempt, which is more serious, is foreclosed. To your point about pursuing civil contempt --

VAN SUSTEREN: I'd want the civil one to go faster. I don't think you're going to get the criminal. I don't think you're going to convince the Department of Justice or the U.S. attorney to go after him criminally. I think the civil one is the only way you're going to get that. But if that's going to be your plan, I still don't get it. Why wait?

GOWDY: Well, I was talking to oversight government reform staff today. They're in the process -- they actually don't file it. House general counsel files it. They are working on it as we speak, developing legal theories, because we have to anticipate executive privilege, and then we have to conform our pleadings to defeat that in our initial pleadings. I know three weeks when you are waiting for justice seems like an eternity. In the grand scheme of things we've been working on this for 18 months. If the speaker is correct and we're talking about a couple of weeks, I'll lay my virtue of impatience aside and we'll see.

VAN SUSTEREN: You knew this was coming, so I would have been working on this well in advance of the actual vote. Most lawyers do. Lawyers have sort of auxiliary plans. People pretty much thought this was coming. Do the math in the House of Representatives and you know you'll get the contempt. In terms of the general counsel working on it, lawyers whip these things up pretty fast. You do a lot of heavy research, with the internet and access to law libraries. I really don't believe this can't be filed within two or three days of the vote. I would have filed it the next day. I've pulled all-nighters in cases. It's done all the time.

GOWDY: I am not arguing with you. I have a tendency to want to move quicker as well. I will say this in the defense of House general counsel, there's not a lot of precedent. You have this one case that ultimately wasn't fully litigated. It was resolved. I think there's a sense that there's a little bit of uncharted territory in terms of civil contempt and they don't want to get bounced out on a procedural matter, which would be embarrassing to the House.

So if three weeks is what's required to get it right as opposed to three days, I will give them three weeks. Hopefully they're watching your show tonight and they will sense your impatience and mine as well, and perhaps we can cut that in half to about a week and a half.

VAN SUSTEREN: OK, great.

Now, the inspector general at the Justice Department is working on a report. I have no clue why that's taken 300 years as it has so far. It's been 18 months since this happened. I don't understand why that's taking so long. Do you have any indication when the inspector general is going to finish that report for the benefit of this murdered border agent's family, because they want information?

GOWDY: I can't recall where I heard this. I heard it last week. It may have been from Jason Chaffetz. I've heard a timeframe of less a month. My guess is he went and re-interviewed some folks, or wanted to make sure that the first piece of congressional work had all the i's and t's crossed. Greta, I've said on your show before, there have been continents that have shifted in less time than it's taken the inspector general to walk down the halls of DOJ and ask some pretty basic questions.

I can tell you this, I cannot wait for the inspector general to release his report, and then come before oversight and judiciary and defend it, because the other piece of information that I have gleaned is that they are going to be very critical of the department -- of the U.S. attorney's office and ATF and Arizona, which is about as shocking as a news alert that the earth is round. They're going to protect the Department of Justice and implicate ATF and the U.S. attorney's office in Arizona. And that will be wholly unsatisfactory to many of us. If I was the inspector general I would plan for a long day on Capitol Hill when and if the stars align and the equinox is complete and he is finished with his report.

VAN SUSTEREN: And the sort of -- the thing that we may never forget, we probably end every segment with every night, is that as Department of Justice is dragging its feet, and producing the documents, or resolving it, assuming the executive privilege doesn't apply to all the documents -- maybe it does, doesn't -- is there was a border agent murdered, and his family reasonably expects more from all of us to get that information. Anyway, congressman, thank you.

GOWDY: Yes, ma'am, thank you.

VAN SUSTEREN: You were an assistant United States attorney, so you've been through it. Thank you, sir.