DOJ Instructs D.C. Attorney to Ignore Federal Law
July 2, 2012 • 8:11AM

As previously reported, the Department of Justice responded to the House of Representatives' June 28 citation of Attorney General Holder for contempt, with a letter from Deputy Attorney General James Cole (Holder's immediate subordinate) to the United States Attorney for the District of Columbia, Ronald Machen and Speaker of the House John Boehner (R-Oh.), the same day. Cole's letter informed Boehner and Machen that "the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General."

Cole's letter cites the "longstanding position" of the DOJ — going all the way back to 1984! — that it will not prosecute an Executive Branch official for contempt of Congress, whose actions have been backed by a Presidential assertion of privilege, such as the President Obama's assertion regarding the "Fast and Furious" documents sought by the House Oversight Committee.

However, as Senator Charles Grassley noted in a June 29 letter to U.S. Attorney Machen, such a decision is certainly not the DOJ's, nor Cole's, to make: "... the law clearly assigns that duty to you and to no one else." Further, as Grassley said in the preceding sentences, "This language [of the law] is quite clear and simple to comprehend. It is not optional."

The laws in question are in Title 2 of the United States Code. Section 192 makes refusal to provide requested testimony or papers to a committee or house of Congress, a misdemeanor, with stated penalties ("a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months"). Section 194 provides that when a refusal described in Section 192 occurs,

"... a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action." (emphasis added)

The use of the word "shall" in a statute means that the action it is prescribing is mandatory, leaving no room for discretion of the person addressed—and certainly no discretion for the Deputy Attorney General on behalf of the Attorney General who is the subject of the mandatory grand jury. As Senator Grassley said, "It is not optional."

Further, the statute brings in another branch of the Government, for a federal grand jury is an arm of the Judicial Branch. It is the grand jury, under the supervision of a federal judge — not the U.S. Attorney, and not the DOJ — which conducts investigations, though normally steered by the U.S. Attorney's office, and under Section 194, upon notification by the U.S. Attorney. Presumably, if DOJ wants to present the President's assertion of privilege to the federal grand jury investigating Holder's alleged contempt of Congress, and urge them not to indict Holder (which as with any alleged crime, the grand jury may do), the Department can do so.

The DOJ's position goes beyond the presidential signing statements so popular in the Bush and Obama Administrations, asserting that the President will not enforce certain parts of a law enacted by Congress, or Obama's recent decision not to enforce the law against certain categories of illegal immigrants: DOJ now asserts that it can instruct one of its employees, not to comply with a law which specifically directs him or her to take a specific action. Arguably, if U.S. Attorney Machen complies with Cole's letter, instead of clear federal law, it is grounds for impeachment of Machen by Congress, and if DOJ asserts Machen must obey Cole (who, as Deputy Attorney General, oversees the nation's U.S. Attorneys), it may be grounds for impeachment of Cole.

This is yet another major constitutional violation on behalf of Nerobama. The swift action by Cole is tantamount to a flat- out refusal to obey Federal law on the part of the Obama Administration, and specifically on the part of the Department of Justice, which is supposed to be the top law enforcement agency in the nation.