The dispute got a little nastier Wednesday. A House committee voted to hold Attorney General Eric Holder in contempt, the Obama administration invoked a legal stance that could prevent turning over the documents and the confrontation was elevated to the White House and the top House GOP leadership.
House Speaker John Boehner, R-Ohio, and Majority Leader Eric Cantor, R-Va., said the House would vote next week on accepting the House Oversight and Government Reform Committee's contempt of Congress vote.
Committee officials who would conduct any negotiations in the coming days for Oversight Committee Chairman Darrell Issa, R-Calif., said they're looking for at least some additional documents on Fast and Furious — plus some "signs of good faith."
The latter could include substantive responses to future committee requests for documents, reforming the approval process for wiretap applications, acknowledging mistakes in misleading Congress about Fast and Furious, taking whistle-blowers seriously and producing a log of documents to be turned over, according to the officials, who spoke only on condition of anonymity because they weren't authorized to discuss the issue by name.
The administration, for its part, would have to abandon the president's assertion of executive privilege — a legal position that attempts to protect internal executive branch documents from disclosure. If the administration maintains that stance, it could lead to court fights that could take years to resolve.
The last Cabinet member to be cited by a congressional committee for contempt was Attorney General Janet Reno in President Bill Clinton's administration. That was never brought to a follow-up vote in the full House.
Technically, if the full House approves the Holder contempt citation, there could be a federal criminal case against him, but history strongly suggests the matter won't get that far.
Democrats contended that the 23-17 party-line contempt vote Wednesday was just political theater. The committee's top Democrat, Rep. Elijah Cummings of Maryland, called the vote "an extreme, virtually unprecedented action based on election-year politics rather than fact."
Democrats noted that during the committee's 1 1/2-year-long investigation, the Justice Department has turned over 7,600 documents about the conduct of the Fast and Furious operation.
While Boehner and Cantor would make the final decision on postponing a vote, aides to the speaker and Issa said the chairman and his staff would conduct any upcoming negotiations — as they have been doing throughout the year.
The Issa aides believe that a few hundred pages of documents may satisfy them, providing that those records tell the story of how the Justice Department came to understand that it gave Congress false information on Feb. 4, 2011. The department said then that the Bureau of Alcohol, Tobacco, Firearms and Explosives made every effort to interdict weapons moving from Arizona to Mexico.
More than 10 months later, the department retracted that statement after it became clear that the guns were not intercepted but allowed to "walk" to Mexico in hopes that officials could track them to drug lords. The most tragic occurrence in the flawed operation came when agents in Arizona lost track of several hundred weapons, and two of the guns that "walked" were found at the scene of the slaying of U.S. border agent Brian Terry.
The flaws were exposed by whistle-blowers who contacted Sen. Charles Grassley, R-Iowa.
On Tuesday, Holder offered to give lawmakers a briefing on the withheld documents but insisted that this action satisfy Issa's subpoena for the records and negate the need for a committee contempt vote. Issa rejected the offer, saying it was an attempt to force an end to the committee's investigation.
The wiretap approval process is important to Issa because, he contends, the Justice Department gave only a cursory look at applications for wiretaps on targets in Fast and Furious.
One Issa aide said the committee negotiators were looking for the administration to "generate good will that will potentially change the atmosphere on getting a deal."
Another aide added, "But we have to see the documents."