Last month, House Oversight Committee Chair Darrell Issa (R-CA) leaked an effort to hold Attorney General Eric Holder in contempt of Congress to the media — Issa is upset that Holder’s followed a longstanding Department of Justice practice against endangering ongoing investigations by turning over documents concerning those investigations. Since then, Issa’s become more and more isolated. A broad coalition of senior law enforcement executives came out against his crusade against Holder earlier this month, and even the House Republican leadership has been reluctant to support Holder’s efforts.

Now, according to The Hill, Issa’s crusade appears to be collapsing even among his fellow Republican committee members:

Two of the committee’s 23 Republicans have declined to support the measure at this point, while six other GOP panel members did not respond to repeated requests for comment over the last two weeks.

When compared with the 15 Republicans on the committee who have actively been speaking in favor of the measure, the silence, lack of outspoken support and desire by these eight GOP caucus members to avoid the issue could be a problem for Issa. . . . With only 15 committee Republicans publicly supporting the resolution — and no Democrats — Issa falls short of the 21 votes he needs to pass it out of the 40-member panel to the House floor.

In 2010, when Issa was preparing to take the Oversight gavel, he spoke of his plans as if he were the Fifth Horseman of the Apocalypse. Issa promised “hundreds of hearings” intended to “measure failures” by the federal government under President Obama, and he highlighted this promise with a braggadocious Twitter avatar depicting himself as a stick-figure policeman sternly keeping watch over the Capitol.

Less than two years later, Issa primary accomplishments are an all-male panel on women’s health, a bizarre conspiracy theory about about a Rube Goldberg-like plan to undermine the Second Amendment, and, now, a witchhunt against the Attorney General that even his fellow Republican lawmakers seem reluctant to support.

House Oversight Chair Darrell Issa’s (R-CA) claim that Attorney General Eric Holder should be held in contempt for declining to turn over records of ongoing criminal investigations to Issa’s committee has not been received well by people who actually know something about law enforcement. Philadelphia Police Commissioner Charles Ramsey warned that Issa’s crusade against Holder has “distracted the Department of Justice in its efforts to assist state and local law enforcement — particularly in the area of violent crime prevention and suppression,” and a group of senior African-American law enforcement officials similarly warned that Issa’s efforts are “an impediment to the vigorous enforcement of violence and crime.”

Indeed, Issa’s overreach against Holder extended so far that even the House Republican Leadership is trying to reign him in. Nevertheless, a core group of House freshmen are now trying to pressure them to ignore the wishes of law enforcement:

In a letter to Speaker John Boehner (Ohio), Majority Leader Eric Cantor (Va.) and Majority Whip Kevin McCarthy (Calif.); Reps. Sandy Adams (Fla.), Ben Quayle (Ariz.), Tim Griffin (Ark.), Dennis Ross (Fla.), Tom Marino (Pa.) and Trey Gowdy (S.C.) argued that “the House of Representatives has seen its proper oversight function thwarted and obstructed. It’s time for the House to formally recognize the obvious — that Attorney General Holder has not and will not cooperate with the legitimate investigation launched by the House Oversight and Government Reform Committee and is therefore in contempt of Congress.”

For weeks, Oversight and Government Reform Chairman Darrell Issa (Calif.) has unsuccessfully lobbied leadership to allow contempt proceedings to begin against Holder.

Last week, even Eric Cantor seemed to understand that Issa’s crusade went too far. Cantor and his fellow members of the House leadership will now have to decide whether to abandon that good sense, ignore the wishes of law enforcement, and pick up his own pitchfork alongside the House freshmen.

Rep. Darrell Issa (R-CA) talked a big talk when he was preparing to take over as chair of the House Oversight and Government Reform Committee in 2010. He promised “hundreds of hearings” intended to “measure failures” by the federal government under President Obama. His office was inundated with resumes from conservative lawyers looking to make a name for themselves as Obama killers. Issa even changed his Twitter avatar into a braggadocious image of himself as a stick-figure policeman sternly keeping watch over the Capitol.

A year and a half later, all those eager young lawyers who took jobs under Issa might be reconsidering their career choice. As Oversight Chair, Issa’s proved far more adept at booking himself on Fox News than he has at actually uncovering real scandals. He’s used his media celebrity status to tout bizarre conspiracy theories, such as a claim that a series of botched law enforcement operations begun under the Bush Administration were actually secret Obama plot to undermine the Second Amendment. His highest profile hearing to date was an all-male panel on contraception that did far more to embarrass conservatives than it did to provide government oversight. Issa’s compared himself to Martin Luther King, Jr. in response to criticism of how he wields his gavel. And he turned oversight of one of the few legitimate scandals his Committee has focused upon — the botched “gun running” operations along the Mexican border that rightfully led to several Justice Department officials losing their jobs or being demoted — into a baseless campaign to pin blame for these operations on Attorney General Eric Holder.

Indeed, Issa’s overreach has become so apparent that even the House leadership appears to be losing faith in his judgment:

Speaker John Boehner of Ohio, Majority Leader Eric Cantor of Virginia and Majority Whip Kevin McCarthy of California have decided to slow Rep. Darrell Issa’s drive to hold the attorney general in contempt over the controversial Fast and Furious program, a move that could infuriate conservatives who have been calling for Holder’s resignation.

The delay could be a month or even longer, according to lawmakers and aides familiar with the issue.

Some within House GOP leadership circles would like Issa to abandon his plan for a committee and floor vote, which was sparked by a 64-page memo last week, which laid out the case for contempt.

This is not the first time Issa’s self-promoting approach to his job sparked tension between himself and other top House Republicans. Energy and Commerce Chair Fred Upton (R-MI) publicly disagreed with Issa’s hostile approach to an agreement between the Obama Administration and the auto industry over emissions standards. And Issa “ruffled the feathers” of fellow committee chair John Mica (R-FL) after Issa appeared to push Mica out of the spotlight once a scandal involving the General Services Administration started to receive media attention.

Nevertheless, the most recent disagreement over whether to move forward with Issa’s anti-Holder crusade appears to be the first time the House’s most senior leaders publicly made their disagreement with Issa known, and that alone is significant. When even Eric Cantor thinks you are overreaching, it’s a good sign that you might need to dial it back a few notches.

In 2006, under President George W. Bush, the Bureau of Alcohol, Tobacco, Firearms and Explosives began the first of a series of misguided operations that allowed illegal guns to be sold to arms traffickers and, eventually, to Mexican drug cartels. At least two of these guns were later used to kill a federal agent. These operations were misguided from the very beginning, and they deserve the kind of thorough investigation the Justice Department’s Inspector General is currently trying to conduct — as well as new procedures to ensure that similar mistakes are not made in the future.

Unfortunately, House Oversight Chair Darrell Issa (R-CA) sees things differently. For more than a year, he has compounded the tragedy of these botched operations by treating them as little more than an opportunity to embarrass Attorney General Eric Holder and the Obama Administration. Issa’s held half a dozen hearings on “Fast and Furious,” one of the botched operations, but refused to call Attorney General Michael Mukasey, who was in charge of the Justice Department when these operations were conceived. He’s led a months-long witchhunt for proof that Holder was somehow responsible for the operations, grasping at increasingly thin straws throughout this effort. And he’s touted the ridiculous conspiracy theory that the Obama Administration somehow wants to harness these botched efforts to “take away or limit people’s second amendment rights.”

And now, Issa’s going to escalate his inquisition even further:

Republican House leaders have drafted a proposed contempt of Congress citation against Atty. Gen. Eric H. Holder Jr. in which they charge that he and his Justice Department have repeatedly “obstructed and slowed” the Capitol Hill investigation into the ATF’s flawed Fast and Furious gun-tracking operation.

The 48-page draft citation is being drawn up by Rep. Darrell Issa (R-Vista), chairman of the House Committee on Oversight and Government Reform. Top committee officials recently met for most of a day in the House speaker’s office and were given the green light to proceed toward a contempt citation, according to sources who declined to be identified.

If adopted by the GOP-led House, the contempt resolution would be sent to the U.S. attorney’s office in Washington or perhaps an independent counsel in an attempt to force the Justice Department to provide tens of thousands of internal documents to the committee.

Notably, Issa did nothing to inform the committee’s minority members of this pending citation — Ranking Member Elijah Cummings (D-MD) learned about it from the press. A tactic which, in Cummings’ words, “suggests that [Issa is] more interested in perpetuating [his] partisan political feud in the press than in obtaining any specific substantive information relating to the Committee’s investigation.”

More importantly, there is a very good reason why DOJ has not turned over every single document Issa seeks — those documents could undermine countless ongoing criminal investigations. Many of the documents Issa seeks are confidential materials concerning open investigations. Such documents are not subject to congressional subpoena because revealing them would also reveal “strategies and procedures that could be used by individuals seeking to evade [DOJ's] law enforcement efforts.”

Moreover, as President Reagan’s Justice Department warned in the 1980s, the Constitution’s separation of powers prevents such documents from being revealed to Congress because of the risk that the legislature could “exert pressure or attempt to influence the prosecution of criminal cases.” The Constitution separates lawmaking from enforcement because the framers feared that combining the two would be “the very definition of tyranny,” yet Issa seeks to erode this understanding as well.

America deserves a thoughtful and objective investigation into the ill-conceived operations that armed drug cartels and killed at least one federal official. Instead, they are getting partisan grandstanding that does nothing but undermine the Justice Department’s ability to do its job.

Normally, we would not let more than 48 hours pass between a major speech by the Attorney General of the United States defending targeted killings of U.S. citizens and our first discussion of this event. The speech Eric Holder gave on this topic Monday, however, does not exactly lend itself to rapid response. It presents one of the most difficult questions in national security policy — how to balance the need to react to threats quickly with the fact that quick action prevents intensive review or preemptive oversight of a commander’s decision to order a strike. And it concerns one of the most ambiguous passages in our Constitution.

Holder’s strongest point is his statement that there are ample precedents for military strikes that “target specific senior operational leaders” of hostile forces. He cites Admiral Isoroku Yamamoto, the Japanese commander U.S. forces killed in a targeted strike during World War II, and Osama bin Laden as two examples. Ultimately, however, Holder has to confront a more challenging legal question, what if bin Laden had been born in California, and thus was an United States citizen?

In Holder’s analysis, this question turns upon the meaning of the notoriously ambiguous Due Process Clause of the Fifth Amendment, which ensures that no person is deprived of “life, liberty, or property, without due process of law.” The Constitution’s text, however, offers little guidance on just what kind of process is “due” in a particular case. Must a court approve a targeted strike? Or Congress? Should a board of generals be convened? And just what would a review board or judge have to determine before authorizing a strike to move forward?

Holder proposes several questions that could guide this determination. The government would conduct a review to determine that the “individual poses an imminent threat of violent attack against the United States.” It would determine that “capture is not feasible” and that “the operation would be conducted in a manner consistent with applicable law of war principles.” Holder places the responsibility for determining whether or not these limits have been adequately addressed at the feet of the Executive Branch — and ultimately, the President himself.

As a constitutional matter, this is probably correct. Courts have historically stayed far away from tactical military decisions, and for good reason — judges are neither expert in military affairs nor equipped to review an order to execute a strike before the window of opportunity for an attack passes. Moreover, there’s nothing in the Constitution suggesting that, once Congress has given the president a broad grant to use military force against a particular enemy, that the president must go back to Congress to get new authorization to take actions that fit within the scope of that grant.

At the same time, however, any Post-Bush evaluation of the president’s wartime powers must take account of the problem of John Yoo. If President Obama has the power to authorize targeted strikes without first seeking outside approval, than so too would a less responsible president. Similarly, Yoo himself defended many of the Bush Administration’s most egregious human rights violations on the theory that the power to kill an enemy combatant must also include the power to do what you wish with them. In Yoo’s words, “death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them.” So if the president can kill citizen combatants, why can’t he torture them?

As it turns out, there is a simple answer to this question, and you can find it right in the United States Code:

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

One of the most well established principles in American law — stretching at least as far back as the Supreme Court’s 1804 decision in Little v. Barreme — is that Congress has the power to forbid the president from waging war in certain ways. John Yoo was wrong in no small part because Congress said he was wrong — the president cannot ignore the law, and thus cannot authorize torture.

Ultimately, this may be the only answer for Americans who do not want their president to have the power to target other Americans. Congress may forbid the practice, or require additional review before such attacks may occur. Until they do, however, Holder’s analysis is likely a correct statement of the law.

Yesterday, House Oversight Chairman Darrell Issa (R-CA) convened the sixth hearing on one of a series of deeply misguided gun stings that began in 2006 under George W. Bush. Issa, however, has shown little interest in actually getting to the bottom of how these ill-conceived operations, which eventually led to illegal guns being turned against federal agents, came about and what can be done to prevent similar errors from occurring again — he’s refused, for example, to call Bush era Attorney General Michael Mukasey to testify. Instead, he’s relied on a series of increasingly paranoid and ridiculous conspiracy theories to try to lay the blame for these operations at Attorney General Eric Holder’s feet.

Last December, for example, Issa touted the absurd notion that the Obama Administration is somehow using the high-profile gun violence that occurred during this operation as part of an intentional campaign to discredit the Second Amendment. In Issa’s words, “they’ve made a crisis and they’re using this crisis to somehow take away or limit people’s second amendment rights.” Issa, of course, was not able to cite a single example of people’s Second Amendment rights being taken away, because none exist.

At yesterday’s hearing, Rep. Tim Walberg (R-MI) was left with the unfortunate task of asserting this Fox Mulderesque theory:

This thing has gone wrong, was set up to go wrong, and, frankly, I think was set up to deal with Second Amendment liberties of law abiding citizens and pushing into a perception that it was the problem of the Second Amendment as opposed to law enforcement.

Watch it:

It’s difficult to even get your head around this accusation, which originates from a former militiaman who supports violent resistance to imagined government attempts to seize his guns. The claim appears to be that a series of botched gun stings that begun during the Bush Administration were actually part of a secret Obama plot to release guns to Mexican drug lords, so that those guns could then be used to kill federal agents, which would then cause a national uprising in support of gun control. Maybe when the Obama Administration was done executing this Rube Goldberg plan, they would then sap and impurify all of our precious bodily fluids.

But there’s another, even more disturbing aspect to this hearing, and the five others that have proceeded it. The reason why Attorneys General Mukasey and Holder did not stop these unfortunate operations from occurring is because they cannot reasonably be expected to know about every single operation conducted by every single field operative in every part of the country. The Attorney General supervises nearly 112,000 employees. It is neither desirable for him to be aware of every single operation being conducted by low-level field agents nor physically possible to brief him on all of these operations if he wanted to be. For this reason, the Attorney General and DOJ’s other senior most managers must focus their attention on the very most important matters that concern their agency — serious questions of national security, or major policy decisions, or trials or appeals that impact the entire nation.

When Issa drags Holder before a House committee for four hours to be nothing more than a pawn in an elaborate game set up to embarrass President Obama, that means many more hours — most likely days — that Holder and other key Justice Department officials must spent prepping for their role in Issa’s withhunt. Every minute they spend preparing for this witchhunt is a minute they cannot spend ensuring that the law is fairly enforced, that national security officials in DOJ have the tools they need to operate, or that dangerous criminals are tracked down and prosecuted.

A real investigation is necessary to determine how these botched gun stings continued across two presidencies, which is why DOJ’s inspector general is conducting just such an investigation. Likewise, real accountability is necessary when a government operation goes so horribly wrong, which is why the senior officials who allowed this to happen have correctly been removed from their jobs or demoted. But there are real costs to the country when people like Issa can turn a very real tragedy into embarrassing and time consuming political theatre. The American people deserve to have an Attorney General who can focus on doing his job.

This post is the third in a three-part series on last night’s voting rights speech by Attorney General Eric Holder. Part I is here. Part II is here.

Easily the boldest — and one of the most needed — idea in Attorney General Holder’s voting rights speech last night is a proposal to modernize our voter registration system to make it easier for every American to participate in democracy:

Today, the single biggest barrier to voting in this country is our antiquated registration system. According to the Census Bureau, of the 75 million adult citizens who failed to vote in the last presidential election, 60 million of them were not registered and, therefore, not eligible to cast a ballot.

All eligible citizens can and should be automatically registered to vote. The ability to vote is a right — it is not a privilege. Under our current system, many voters must follow cumbersome and needlessly complex voter registration rules. And every election season, state and local officials have to manually process a crush of new applications – most of them handwritten – leaving the system riddled with errors, and, too often, creating chaos at the polls.

Fortunately, modern technology provides a straightforward fix for these problems – if we have the political will to bring our election systems into the 21st century. It should be the government’s responsibility to automatically register citizens to vote, by compiling – from databases that already exist – a list of all eligible residents in each jurisdiction. Of course, these lists would be used solely to administer elections – and would protect essential privacy rights.

Sadly, this basic and obvious point — that the franchise should not depend on whether a voter jumped through the right administrative hoop or whether a voting official misplaced their paperwork — is itself a point of stark contract between the Obama Administration and many of his conservative antagonists. As Holder is considering common sense ways to make our democracy function better, conservative lawmakers throughout the country are pushing laws making it harder and harder to register to vote.

This post is the second in a three-part series on last night’s voting rights speech by Attorney General Eric Holder. Part I is here.

Republicans justify their vote suppressing “voter ID” laws by raising imagined fears of in person voter fraud. In their mythology, armies of votes arrive at the polls every year to stuff the ballot box with extra ballots cast under false names. In truth, of course, a voter is 39 times more likely to be struck by lightning than to actually commit fraud at the polls.

Yet, as Attorney General Holder explained in last night’s speech, this does not mean that election fraud is entirely a myth. Another, much more virulent form infects American democracy:

Over the years, we’ve seen all sorts of attempts to gain partisan advantage by keeping people away from the polls – from literacy tests and poll taxes, to misinformation campaigns telling people that Election Day has been moved, or that only one adult per household can cast a ballot. Before the 2004 elections, fliers were distributed in minority neighborhoods in Milwaukee, falsely claiming that “[I]f anybody in your family has ever been found guilty [of a crime], you can’t vote in the presidential election” – and you risk a 10-year prison sentence if you do. Two years later, 14,000 Latino voters in Orange County, California, received mailings, warning in Spanish that, “[If] you are an immigrant, voting in a federal election is a crime that can result in jail time.” Both of these blatant falsehoods likely deterred some eligible citizens from going to the polls.

And, just last week, the campaign manager of a Maryland gubernatorial candidate was convicted on election fraud charges for approving anonymous “robocalls” that went out on Election Day last year to more than 100,000 voters in the state’s two largest majority-black jurisdictions. These calls encouraged voters to stay home – telling them to “relax” because their preferred candidate had already wrapped up a victory.

To his credit, Holder’s boss, President Obama, has a long history of fighting against these very real forms of election fraud. In 2006, Maryland gubernatorial and Republican Senate candidates Bob Ehrlich and Michael Steele hired hundreds of people to pass out misleading flyers in African-American precincts which falsely suggested that Ehrlich and Steele were actually Democrats and that they were endorsed by three leading black politicians. Then-Senator Obama responded by joining with Sen. Chuck Schumer (D-NY) to introduce the Deceptive Practices and Voter Intimidation Prevention Act of 2007. One of the big pieces of news in Holder’s speech last night is that this bill is making a come back:

In an effort to deter and punish such harmful practices, during his first year in the U.S. Senate, President Obama introduced legislation that would establish tough criminal penalties for those who engage in fraudulent voting practices – and would help to ensure that citizens have complete and accurate information about where and when to vote. Unfortunately, this proposal did not move forward. But I’m pleased to announce that – tomorrow – Senators Charles Schumer and Ben Cardin will re-introduce this legislation, in an even stronger form. I applaud their leadership – and I look forward to working with them as Congress considers this important legislation.

This is excellent news. It is not enough for supporters of voting rights to combat anti-voter laws by simply trying to keep them from passing. Protecting the right to vote means playing offense, and that means passing new legislation designed to protect each voter’s most important civil right. Moreover, while Cardin & Schumer’s legislation is unlikely to pass so long as John Boehner is Speaker, there is no reason why similar legislation cannot be taken up by state lawmakers who share their concern for American democracy.

This post is the first in a three-part series on last night’s voting rights speech by Attorney General Eric Holder

Last night, Attorney General Eric Holder traveled to the Lyndon Baines Johnson Presidential Library to give the most comprehensive explanation of the Obama Administration’s voting rights policy to date. The venue was certainly well chosen. Sixty years ago, when Holder was born, southern men who shared his skin color enjoyed no real access to the ballot box. Today, Holder himself is the chief guardian of America’s voting rights. In the America Holder grew up in, men and women faced fire hoses, endured beatings, bled under the blows of billy clubs wrapped in barb wire and spent night after night in jail as part of a decades long struggle to cast a vote. A few decades later, many of those same veterans of peaceful protest marched into the polling booth and elected Barack Obama president. What changed between now and then was the Voting Rights Act, Lyndon Johnson’s signature accomplishment and probably the most important civil rights law in American history.

Yet, as Holder explained, the very voting rights that he is now charged with enforcing are endangered by an all-too-common pattern of voter suppression laws in the states:

As Congressman John Lewis described it, in a speech on the House floor this summer, the voting rights that he worked throughout his life – and nearly gave his life – to ensure are, “under attack… [by] a deliberate and systematic attempt to prevent millions of elderly voters, young voters, students, [and] minority and low-income voters from exercising their constitutional right to engage in the democratic process.” Not only was he referring to the all-too-common deceptive practices we’ve been fighting for years. He was echoing more recent concerns about some of the state-level voting law changes we’ve seen this legislative season.

Since January, more than a dozen states have advanced new voting measures. Some of these new laws are currently under review by the Justice Department, based on our obligations under the Voting Rights Act. Texas and South Carolina, for example, have enacted laws establishing new photo identification requirements that we’re reviewing. We’re also examining a number of changes that Florida has made to its electoral process, including changes to the procedures governing third-party voter registration organizations, as well as changes to early voting procedures, including the number of days in the early voting period.

Although I cannot go into detail about the ongoing review of these and other state-law changes, I can assure you that it will be thorough – and fair. We will examine the facts, and we will apply the law. If a state passes a new voting law and meets its burden of showing that the law is not discriminatory, we will follow the law and approve the change. And where a state can’t meet this burden, we will object as part of our obligation under Section 5 of the Voting Rights Act.

It is both significant and reassuring that the nation’s top lawyer acknowledges the dire threat state voter suppression laws present to our democracy. Yet the sad irony is that, through no fault of his own, America’s first African-American Attorney General may see the worst contraction of voting rights since the Jim Crow era — and the threat comes from a much more powerful place than a handful of state governments.

Make no mistake, voter ID laws are unconstitutional. If the Constitution’s guarantees of equal protection and equal voting rights mean anything, they must mean that laws intended solely to disenfranchise particular kinds of voters — including many racial minority voters — must not be allowed to stand. Yet, in Crawford v. Marion County Election Board, the Supreme Court largely abdicated it’s responsibility to strike these laws down.

Of course, as Holder notes, Section Five of the Voting Rights Act provides him with an important tool that can be used to block these racially discriminatory laws from going into effect in many states. Sadly, the Supreme Court probably has a plan to remove this tool as well. Conservative lawmakers are begging the courts to declare Section Five unconstitutional, and Roberts has strongly hinted in the past that he wants to give them what they want.

Indeed, forty years from now, it is likely we will look back on John Roberts and some of his colleagues on the Court and remember them for doing more to stand in the way of voting rights than nearly any person since Lyndon Johnson drove the knife into Jim Crow more than four decades ago.