Setting up a potential constitutional confrontation, a Republican-controlled House panel voted Wednesday to cite Attorney General Eric H. Holder Jr. for contempt of Congress, just hours after President Obama invoked executive privilege -- for the first time in his administration -- to withhold documents the committee demanded.
The party-line vote was 23-17 following hours of caustic debate. The controversy goes next to the full House, where Republican Speaker John A. Boehner said there would be a vote next week unless the dispute was resolved in the meantime.
Committee Chairman Darrell Issa, R-Calif., said that "more than eight months after a subpoena" for the documents, which concern how the Justice Department learned about problems with an Arizona probe of gun-running into Mexico, Obama's "untimely assertion" of executive privilege was no reason to delay the contempt vote.
The vote was just political, said Rep. Elijah Cummings of Maryland, the committee's ranking Democrat. He called it "an extreme, virtually unprecedented action based on election-year politics rather than fact."
The last Cabinet member to be cited by a congressional committee for contempt was Attorney General Janet Reno in President Bill Clinton's administration, but it was never brought to a follow-up vote in the full House.
Technically, if the full House approves the Holder contempt citation, there could be a federal criminal case against him, but history strongly suggests the matter won't get that far.
Whether Congress could force the Justice Department to turn over the documents is a basic question. In the Watergate case, the Supreme Court ordered President Richard M. Nixon to turn over taped conversations to a criminal prosecutor. But in the Nixon case, the justices also found a constitutional basis for claims of executive privilege, leaving the door open for presidents to cite it in future clashes with Congress.
In the Obama administration's claim of executive privilege, Deputy Attorney General James Cole said in a letter to Issa, "We regret that we have arrived at this point, after the many steps we have taken to address the committee's concerns and to accommodate the committee's legitimate oversight interests."
As the day went on, comments rapidly grew more heated. A Boehner spokesman suggested administration officials had lied earlier or were now "bending the law." Cummings said Issa "had no interest" in resolving the issue and was trying to pick a fight.
The White House reacted sharply to the committee action. "Instead of creating jobs or strengthening the middle class, congressional Republicans are spending their time on a politically motivated, taxpayer-funded election-year fishing expedition," Communications Director Dan Pfeiffer said.
Boehner raised another question after the president invoked the privilege. His press secretary, Brendan Buck, said, "The White House decision to invoke executive privilege implies that White House officials were either involved in the 'Fast and Furious' operation or the cover-up that followed. The administration has always insisted that wasn't the case. Were they lying, or are they now bending the law to hide the truth?"
During the committee's 18-month-long investigation, the Justice Department has turned over 7,600 documents about the conduct of the Fast and Furious operation.
However, because the department initially told the committee falsely that the operation did not use a risky investigative technique known as gun-walking, the panel has turned its attention from the details of the operation and is now seeking documents that would show how the department headquarters responded to the committee's investigation.
In Fast and Furious, agents of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in Arizona abandoned the agency's usual practice of intercepting all weapons they believe were illicitly purchased. Instead, they used gun-walking, seeking to track such weapons to high-level arms traffickers, who had long eluded prosecution, and to dismantle their networks.
Gun-walking has long 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 Fast and Furious.
The agents in Arizona lost track of several hundred weapons in Fast and Furious. Two of the guns that "walked" in the operation were found at the scene of the slaying of U.S. border agent Brian Terry.
Historically, at some point Congress and the president negotiate agreements to settle these disputes, because both sides want to avoid a court battle that could narrow either the reach of executive privilege or Congress' subpoena power.
Ordinarily, deliberative documents like those Issa is seeking are off-limits to Congress. In Operation Fast and Furious, the Justice Department's initial incorrect denials are seen as providing justification for the additional demands. Issa and the House Republican leadership have asked whether the department's initial denial in a Feb. 4, 2011, letter to Sen. Charles Grassley, R-Iowa, was part of a broader effort to obstruct a congressional investigation.
The material "pretty clearly demonstrates that there was no intention to mislead, to deceive," Holder told reporters.
Wednesday, the slain border agent's parents, Josephine and Kent Terry, said the president's assertion of executive privilege and Holder's refusal to fully disclose documents associated with Operation Fast and Furious "compound this tragedy."
"We are now faced with an administration that seems more concerned with protecting themselves rather than revealing the truth behind Operation Fast and Furious," they said in a statement.