Arrest Eric Holder – OpEd


The House has voted overwhelmingly to hold Eric Holder in contempt of Congress for withholding documents on the Fast and Furious scandal, but where do we go from here? Not surprisingly, the Justice Department won’t prosecute Holder on the charge, and Barack Obama would only take action if the attorney general became a personal liability (and right now cutting him loose might be a liability). Yet there is a way for Congress to put bite in its bark.

It turns out that the House could encourage immediate cooperation by arresting Holder. Such a move would be based upon something called “inherent contempt,” a process that, writes The Washington Times, “is well-established by precedent, has been confirmed by multiple Supreme Court rulings, and is available to any Congress willing to force such a confrontation.” It was also recently alluded to by none other than Nancy Pelosi when she addressed what she considered Karl Rove’s contempt of Congress and said, “I could have arrested Karl Rove on any given day. I’m not kidding. There’s a prison here in the Capitol…. If we had spotted him in the Capitol, we could have arrested him.”

The problem, however, is that our Congress is just not that confrontational. As Constitution Project fellow Mort Rosenberg said, while inherent contempt is constitutional, “[t]he House is scared to death to use the inherent contempt power. …They’re scared to death because the courts have said…the way the contempt power is used is unseemly,” reports the Times.

“Unseemly.” That’s an interesting word. If you or I were held in contempt, would anyone bay the gendarmes and claim that shackling us would be “unseemly”? Actually, it would be downright humiliating. This is why people generally hide their faces from cameras when doing that ignominious walk to a squad car: it is, as it’s supposed to be, a bad experience. But it appears it is one that is only part of the common man’s experience.

No one in America is supposed to be above the law, yet so-called “elites” are held to a lower standard. If anything, however, they should be held to a higher one. Remember that the damage caused by malfeasance is generally proportional to the loftiness of the office. When Bill Clinton informed us that sex isn’t necessarily sex just as “is” may not mean “is,” he did infinitely more to define deviancy downwards than any 1000 anonymous John Q. Publics who consider marriage vows situational. It usually takes great power to commit great crimes.

As for being unseemly, what is so is Holder’s behavior. What’s unseemly is a system in which there is one standard for lowly me and another for lofty thee. Eric Holder should be arrested for one simple reason: he is currently one of the worst criminals I know of. To use a variation on a slogan the left once so loved, Holder lied and people died.

Then there is the death of the rule of law. One reason we have as much bad behavior as we do among pseudo-elites is the same reason why child misbehavior is now rampant: there is little fear of consequences. And this is because the consequences are inconsequential. But high profiles should come with high risk. If powerful public officials knew they could be marched away in handcuffs to a fetid jail cell, perhaps they’d take their oaths of office more seriously.

Of course, I don’t believe there has ever been a civilization that treated those with clout exactly the same as those without; there is no Purgatory on Earth. But the size of the gap between the two types of treatment will always be inversely proportional to the health of the civilization in question. I once had a Mexican tell me that Mexico was a good place to be rich because the wealthy can largely do as they please there. And, in fact, in that nation you can buy your way out of a fatal hit-and-run for $450 or, for the right sum, get the cops to take care of somebody for you. Do you want an America where you have to pay a bribe to get a driver’s or business license? Do you want to see a day when the police stop you for imaginary infractions that can be “adjudicated” on the spot for some not-so-imaginary cash? Then keep tolerating corruption in high places. For not only does it reflect corruption in low ones—most notably, the hearts and minds of the voters—but it’s also contagious. Lower level officials see it in higher ones, and they want a piece of the pie, too. And the citizenry will figure likewise. “Everyone is doing it; why shouldn’t I?” It’s a trickle-down theory at work.

Lest anyone think me naïve, I realize there are many reasons why Holder won’t be arrested. For one thing, such a move would be demonized by the media and might redound negatively upon Republicans in the fall. Another is that few members of the ruling class want to animate a hangman that could be used (perhaps wrongly) against them in the future; once the mutual get-out-of-jail-free card is gone, it’s gone. Also remember that “conservatives” are defenders of the status quo, not bold revolutionaries who overturn and improve it. Yet all this is saying is that people, being just people, will often subordinate transcendent but seemingly remote principles to more ordinary but immediate concerns. But what does this beget? It begets a Justice John Roberts, who—likely motivated by concern for the U.S. Extreme Court’s reputation, his own, or both—visited a blatantly unconstitutional and disastrous piece of legislation upon all of us.

And that is the face of expediency. It’s like the Machiavellian leper character in the film Braveheart, who claimed that the ability to compromise—even with great principles at stake—makes a man noble. But it does not, and creating de facto nobility existing above the law makes a nation quite ignoble. Respect for station is no substitute for respect for rule of law.

Selywn Duke

Selywn Duke is a columnist and author.

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