Grassley challenged the refusal in a letter to U.S. Attorney Ronald C. Machen, Jr., "the appropriate United States Attorney," who according to federal statutory guidelines, is charged with the duty, "to bring the matter of [contempt of congress] before the grand jury for its action."
Grassley makes the observation in the letter that:
"...It is odd that this letter [the one informing Congress of the refusal to prosecute the Attorney General] arrived before the House of Representatives had even transmitted the contempt resolution adopted yesterday to you [Machen] as the 'appropriate United States Attorney'..."Grassley emphasizes in his letter that the pertinent statute that relates to this issue states clearly that Machen's duty (as the appropriate U.S. Attorney) "SHALL be to bring the matter before the grand jury for its action..."
States Grassley:
"...This language is quite clear and simple to comprehend. It is not optional...Moreover, the law clearly assigns that duty to you and to no one else. It could have assigned the duty to the Attorney General or to the Deputy Attorney General or some other official. But, it does not. As for the ultimate decision to proceed with a prosecution after you have exercised your duty to present the matter to a grand jury, that decision is for the citizens empaneled in the grand jury, not for you or for the Deputy Attorney Genral or for "the Department" generally to make..."According to Grassley, The Deputy Attorney General jumped the gun in his declaration refusing to prosecute Attorney General Eric Holder:
"...The Deputy Attorney General's letter has put the cart before the horse. As you may or may not know, the Justice Department and the White House have refused to provide a particularized description of the documents being withheld or a description of the documents over which executive privilege has been asserted. No one can reasonably make an intelligent judgement as to the validity of a privilege claim without a specific description of the documents in question, at the very least..."Grassley cites what the District Court for the District of Columbia recognized (with regard to Executive Privilege claims) when it considered the contempt citations of White House officials Josh Bolton and Harriet Miers, during the Bush Administration years:
"...[B]oth the Court and the parties will need some way to evaluate privilege assertions going forward in the context of this litigation. More specifically, if the Court is called upon to decide the merits of any specific claim of privilege, it will need a better description of the documents withheld than the one found in Mr. Clement's letter of June 27, 2007..."Grassley asserts that this same principle "...applies to you (Machen) in order to evaluate the privilege assertion and thus assess your duty under the statute. Ideally, you would undertake an actual examination of the documents in order to make an independent assessment of the validity of any privilege claim..."
Grassley appeals to Machen's objectivity and "independence," and using Machen's appointment by Attorney General Holder to be one of the U.S. attorneys to lead the investigation into the possible leaking of state secrets, tells Machen:
"... The Attorney General has assigned to you the duty of investigating a series of national security leaks. The Attorney General and several members of the Senate Judiciary Commitee expressed supreme confidence in your ability to act independently and take the facts wherever they lead, regardless of the political consequences or any pressure to pull punches that might come from the political leadership of the Department or from the White House. Your Independence and integrity were cited as the reason that there was supposedly no necessity to appoint a special prosecutor. This matter gives you an opportunity to live up to that high praise and prove your independence..."However, Grassley also calls into question that any such "independence" exists:
"...Before you have even received the [contempt] 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..."Grassley therefore asks Machen the following, "..so that Congress can have a better understanding of the procedural standing of this matter..."
"...1. 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.
2. Have you been instructed not to present the contempt citation to a grand jury? If so, when, by whom, and on what grounds?
3. Have you independently decided not to present the contempt citation to a grand jury? If so, when and on what basis?
4. 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.
5. 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 judgement about your duty under the contempt statute to present the contempt citation to a grand jury?..."Grassley's challenge to the DOJ's refusal to move forward with the contempt citation emerges in conjuction with other critical developments in the Fast and Furious case. Just yesterday, Grassley and Congressman Darrel Issa implored the Department of Justice Inspector General to take measures to ensure that Fast and Furious whistleblowers were not retaliated against by senior Department of Justice officials, who allegedly had made statements in the past urging retaliation against those that had come forth with Fast and Furious Program information. (See that story HERE).
