Eric Holder must be impeached from the office of Attorney General, because Holder was held in contempt of Congress over Fast and Furious document subpoenas. Eric Holder is now legally required to prosecute Eric Holder. Attorney professional rules do not allow Holder to continue under that conflict of interest.
Eric Holder should be impeached from the office of Attorney General, U.S. Senator Ted Cruz (R-TX) declared on Thursday. If Holder fails to seek indictments of IRS manager Lois Lerner and others responsible for targeting groups and individuals for their political views, Cruz says Congress should impeach Holder.
However, Cruz does not go far enough. Federal law requires the U.S. Attorney General to now prosecute himself for criminal contempt. Eric Holder was held in criminal contempt of Congress by the US House of Representatives on June 28, 2012, for refusing to provide documents concerning the “Fast and Furious” gun-running scandal.
So the law requires Eric Holder to prosecute Eric Holder. The U.S. Department of Justice should have appointed an Independent Counsel under 28 USC § 592. Holder has already violated the law and attorney ethics rules by failing to recuse himself. Therefore, Congress should now impeach Holder immediately.
Surprisingly, the Republican-controlled U.S. House of Representatives acting alone also has the inherent power to arrest and imprison Eric Holder and Lois Lerner to force them to comply with Congressional subpoenas. Liberals have argued extensively in public that Congress has that arrest authority. (See also, generally, “Congress’s Contempt Power and the Enforcement of Congressional Subpoenas,” Congressional Research Service report, August 17, 2012).
Recall that in “Operation Fast and Furious,” the Obama Administration both vastly expanded, changed, and also badly bungled a smaller project under George Bush previously called “gun walking.” Hundreds of Mexican citizens were murdered, along with several U.S. citizens, when thousands of high-powered weapons were distributed by the U.S. Department of Justice to deadly drug-trafficking cartels and other criminals in Mexico.
However, the need for Congressional oversight is even greater, because chaos within the U.S. Department of Justice emerged. The Department’s Inspector General released a report blasting a government leak intended to smear a key whistleblower Special Agent John Dodson from ATF (Bureau of Alcohol, Tobacco and Firearms). Dodson’s explosive testimony before Congress blew the lid off the scandal. And why didn’t the U.S. State Department manage the foreign policy?
Former U.S. Attorney Dennis Burke in Phoenix resigned in the scandal along with acting ATF boss Kenneth Melson in August 2011. Burke was one of the officials at the center of the scheme. But documents show that Burke was furious at learning that whistleblowers had gone to Congress and reporters. So a U.S. Attorney was trying to cover it up. Emails show that Burke tried to intimidate the Arizona Republic newspaper. So Congress has a duty to investigate this zoo.
Federal law requires the U.S. Attorney for the District of Columbia Ronald Machen to present the contempt charge against Eric Holder to a grand jury. 2 U.S.C. §192 makes each incident of contempt of Congress a misdemeanor. 2 U.S.C. §194 makes it mandatory for the U.S. Attorney to seek an indictment. The contempt of Congress is reported “to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”
The duty of the U.S. Attorney is mandatory, not discretionary. In United States v. United States House of Representatives, 556 F. Supp. 150, 151 (D.D.C. 1983), the relevant district court observed that after a contempt of Congress citation is delivered to the U.S. Attorney, he “is then required to bring the matter before the grand jury.” The U.S. Attorney has no choice but to prosecute Eric Holder.
Note that the Republican-controlled U.S. House of Representatives can act independently of the U.S. Senate to initiate criminal prosecution. The criminal contempt statute was passed specifically to address cover-ups of government misconduct. It added to Congress’ inherent contempt power.
However, Attorney General Eric Holder is directly involved in such prosecutions: Even though the U.S. Attorney is the official responsible, 28 USC § 519 makes the Attorney General also part of the process:
“Except as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.”
28 USC §516 similarly requires:
“Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.”
Therefore, Eric Holder is part of the prosecution. But Eric Holder is forbidden from participating in a prosecution of himself. And the U.S. Attorney also has a conflict of interest, because he would be prosecuting his own boss. Rule 1.7 of the District of Columbia Rules of Professional Conduct governing D.C. lawyers requires:
“(b) Except as permitted by paragraph (c) below, a lawyer shall not represent a client [i.e., the U.S. Government] with respect to a matter if: … (4) The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.”
The test for conflicts of interest by a U.S. Attorney is similar to that for a judge: “whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned,” says United States v. Darden, 988 F.2d 133 (9th Cir., 1993), citing to United States v. Payne, 944 F.2d 1458, 1476 (9th Cir.1991), cert. denied, 112 S.Ct. 1598 (1992); see also 28 U.S.C. § 455(a).
“It is professional misconduct for a lawyer to:
The law at 28 USC § 591 requires:
(e) Recusal of Attorney General.-
(1) When recusal is required.- (A) If information received under this chapter involves the Attorney General, the next most senior official in the Department of Justice who is not also recused shall perform the duties assigned under this chapter to the Attorney General.”
This contempt of Congress case is unlike almost any other. The misconduct of the “Fast and Furious” scandal was committed by the U.S. Department of Justice itself. Normally the Attorney General is representing a different government agency as their lawyers.
Also, the defense to a contempt charge is the claim of Executive Privilege over the documents. So the core of the controversy will be litigating whether Executive Privilege is a valid reason to withhold the documents from Congress or not. But the dispute over Executive Privilege makes Eric Holder and other DoJ officials witnesses in the dispute. Again, the scandal was committed within the DoJ itself.
Therefore, Eric Holder must either appoint an Independent Counsel or resign. He has no choice. Holder is forbidden from representing the U.S. Government as its lawyer – Attorney General – when he personally faces a legal challenge that could potentially land him in jail.
Because Holder refuses to resign, he is violating the District of Columbia Rules of Professional Conduct which govern the legal profession. His violation of the Bar rules require that Congress remove Eric Holder from office.