WASHINGTON – The Justice Department declared Friday that Attorney General Eric Holder'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 Barack Obama 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 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, said it is regrettable that "the political leadership of the Justice Department" is taking that position. Issa, the House Oversight and Government Reform Committee chairman, 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 Operation Fast and Furious, a flawed gun-tracking investigation 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.
The contempt votes happened on the day that Obama's health care law survived in the Supreme Court, prompting some Democrats to speculate that the votes were scheduled to be overwhelmed by news stories about the ruling.
About five hours after the court ruled, with news sites flooded with information about the health care ruling, the House voted 255-67 to declare Holder in criminal contempt.
A second vote of 258-95 held Holder in civil contempt and authorized the House to file a lawsuit.
In past cases, courts have been reluctant to settle disputes between the executive and legislative branches of government.
The issue became more complicated when Obama invoked a broad form of executive privilege, a legal doctrine designed to keep private certain communications of executive branch agencies.
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.
The documents were written after Fast and Furious was shut down. The subpoena covered a 10-month period from February 2011, as the Justice Department expressed growing concern that the Fast and Furious operation had employed a risky investigative tactic known as "gun-walking." In early December 2011, the department finally acknowledged that the initial denial of gun-walking was in error.
Republicans said the contempt citations were necessary because Holder refused to hand over documents that could explain why the Obama administration took 10 months to acknowledge the gun-walking.
In Fast and Furious, ATF agents abandoned the agency's usual practice of intercepting all weapons they believed to be illicitly purchased, often as soon as they were taken out of gun shops. Instead, the goal of the tactic known as "gun-walking" was to track such weapons to high-level arms traffickers, who had long eluded prosecution, and to dismantle their networks.
Gun-walking long has been barred by Justice Department policy, but federal agents in Arizona experimented with it in at least two investigations during the George W. Bush administration before Operation Fast and Furious. These experiments came as the department was under widespread criticism that the old policy of arresting every suspected low-level "straw purchaser" was failing to stop tens of thousands of guns from reaching Mexico, more than 68,000 in the last five years. A straw purchaser conceals that he is buying guns for others.
Fast and Furious identified more than 2,000 weapons suspected of being illicitly purchased. But agents lost track of many of the guns. Some 1,400 of them have yet to be recovered.