Well it looks like Congress is going to have to make another chess move here after the vote on Thursday to hold Attorney General Eric Holder in contempt of Congress. Deputy Attorney General James Cole has informed, by letter, House Speaker John Boehner that his department will not be pursuing prosecution. Is anyone surprised by this? Not me.

Cole wrote that the attorney general's withholding documents that pertain to "Operation Fast and Furious does not constitute a crime."

"Therefore the department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the attorney general," Cole wrote.

While a department official called the letter "pro forma", or a formality, Republicans slammed the Justice Department for the move. Spokesman for House Oversight and Government Reform Committee Darrell Issa, Frederick Hill, said, "It is regrettable that the political leadership of the Justice Department is trying to intervene in an effort to prevent the US attorney for the District of Columbia from making an independent decision about whether to prosecute this case."

Because of the move on the part of the DOJ, it means the Republicans will likely have to take their case to civil court to get the documents they've been after for the past 18 months. Unofficially that has been their plan all along. They passed a civil contempt measure on Thursday as well so that they could obtain an order to have the documents released.

Fox News reported,

The Justice Department moved Friday to shield Attorney General Eric Holder from prosecution after the House voted to hold him in contempt of Congress.

The contempt vote technically opened the door for the House to call on the U.S. attorney for the District of Columbia to bring the case before a grand jury. But because U.S. Attorney Ronald Machen works for Holder and because President Obama has already asserted executive privilege over the documents in question, some expected Holder's Justice Department to balk.

Machen was supposed to assess the contempt charges before making a decision about prosecuting Holder. There can be no doubt that this was all planned in anticipation of the contempt vote.

Senator Chuck Grassley, who also has been heavily involved in the Fast and Furious investigation, wrote a letter to Mr. Machen expressing doubts that Machen even took time to evaluate the charges before making his decision.

Grassley wrote, '"Your independence and integrity were cited as the reason that there was supposedly no necessity to appoint a special prosecutor. This matter [the congressional contempt citation] gives you an opportunity to live up to that high praise and prove your independence.”

"The way this has been handled so far suggests no such independence at all," the letter reads. "Before you have even received the citation, before you have even had a chance to understand the scope of the documents and the privilege claim at issue, the Deputy Attorney General has already announced the decision of “the Department” not to proceed as required by the contempt statute."

The Senator then asked pertinent questions of Machen.

  • Have you had any communications with the Deputy Attorney General, the Attorney General, or other senior Department political appointees about the contempt citation or about Operation Fast and Furious? If so, provide a detailed description of those communications and when they occurred.
  • Have you been instructed not to present the contempt citation to a grand jury? If so, when, by whom, and on what grounds?
  • Have you independently decided not to present the contempt citation to a grand jury? If so, when and on what basis?
  • Have you conducted an independent review of the documents being withheld from Congress by the Attorney General in order to assess the validity of any privilege claims? If so, when did that review occur? If not, please explain why not.
  • Have you been provided with copies of the documents the Attorney General is withholding from Congress or a specific list of the documents being withheld? If so, have you conducted an independent analysis of the executive privilege claim? If not, how can you conduct an independent assessment of the validity of any executive privilege claim or make any independent judgment about your duty under the contempt statute to present the contempt citation to a grand jury?

I suppose with the actions of the Justice Department thus far and understanding that Machen works for Holder, we probably can expect much of the same sort of response as the Attorney General himself, which will be more stonewalling and less answering.

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