From: The Honorable Paul A. Gosar
Sent By: kelly.ferguson@mail.house.gov
Bill: H.Res. 490
Date: 1/9/2012

Dear Colleague:

Attorney General Eric Holder’s upcoming testimony before the Oversight and Government Reform Committee on February 2nd presents a new and significant opportunity to hold Attorney General Holder accountable for the egregious, irresponsible, and deadly Operation Fast and Furious. The Attorney General has consistently been evasive and deceptive in response to legitimate and entirely proper Congressional oversight efforts – given the hundreds of lives cost by this senseless policy, the American people deserve better. The Attorney General has passed up multiple chances to make this situation right, and so Congress must act.

I am asking your support of H. Res. 490, a resolution expressing the sense of the House that it has no confidence in Attorney General Eric Holder.  The reasons supporting this resolution are detailed in the Resolution itself, and include, but are not limited to: (1) misleading Congressional investigators in February 2011 (now admitted to by Mr. Holder), (2) withholding key evidence from Congressional investigators, (3) failing to cooperate with a sovereign nation impacted by DOJ actions through Mexican authorities and allowing thousands of weapons to be transferred to Mexico for use by drug cartels and criminals, and, (4) according to internal emails,  using this government operation as a pretext to create an incident that would lead to more restrictive gun laws and an attack on the Second Amendment. 

H. Res. 490 is not an article of impeachment, or even a statement that Mr. Holder should resign – although I and many of our colleagues believe he should. It is simply a statement that Mr. Holder is not fulfilling his responsibilities to Congress and to the American people. Please join me in making that statement by signing on as a cosponsor to H. Res. 490.

If you have any questions, please contact Kelly Ferguson at Kelly.ferguson@mail.house.gov.

Sincerely,

Dr. Paul Gosar, DDS

Member of Congress, Arizona

Q.    Is a House Resolution of No Confidence an accepted means for the House to express its opinion about an executive branch officer?

A.        Yes.  According to the Congressional Research Service,  it “has become accepted congressional practice to employ a simple resolution of one House of Congress, or a concurrent resolution by both Houses, for certain non-legislative matters, such as to express the opinion or the sense of the Congress or of one House of Congress on a public matter, and a resolution expressing an opinion of “no confidence” in, or other expression of censure or disapproval of an executive branch official within a concurrent or simple resolution would appear to be in the nature of such a “sense of Congress” or “sense of the Senate” (or House) resolution.”  CRS June 11, 2007 “No Confidence” Votes and Other Forms of Congressional Censure of Public Officials.”

It has been further explained that the practice of the House “to express facts or opinion in simple or concurrent resolutions has been recognized since its earliest days as an inherent authority of the Congress.”  Id.  Since 1973 and through 2006, the CRS reported that there have been 31 resolutions like this submitted from the 93rd through 109th Congresses (1973-2006) directed against federal officials.  Of these 31 resolutions tallied by the CRS, “13 expressed censure of the official, condemnation of the official or his or her actions, or both. The remaining 18 resolutions called either for the official in question to resign or for the President to request resignation, making this form of disapproval the most common among measures identified from recent times.” Id.

Q.        Has this type of Resolution ever been directed at an Attorney General?

A.        Yes.  There is historical precedent for resolutions of no confidence. 

1.  May 24, 2007 resolution of “no confidence” in Attorney General Alberto Gonzales.
2. October 23, 1973 S.Res. 191, a senate resolution condemning then Acting Attorney General Robert Bork.
3. The Senate adopted a resolution in 1886 in which it expressed its “condemnation” of President Cleveland’s Attorney General A.H. Garland as a result of the attorney general’s refusal to provide certain records and papers to the Senate.  17 Congressional Record, 49th Cong., 1st Sess., pp. 1584-1591, 2784-2810 (March 26, 1886): (“Resolved, That the Senate hereby expresses its condemnation of the refusal of the Attorney-General, under whatever influence, to send to the Senate copies of papers called for by its resolution of the 25th of January, and set forth in the report of the Committee on the Judiciary, is in violation of his official duty and subversive of the fundamental principles of the Government and of a good administration thereof.”).

Q.  Have any similar resolutions been heard on the floor of the House in recent years?

A.        In 1997, in the 105th Congress, the House adopted H.Con.Res. 197, which contained a resolution stating  that Sara A. Lister, Assistant Secretary of the Army for Manpower and Reserve Affairs, should resign or be removed.

Q.        What is the Legal Effect of this Resolution?

A.        The passage of this Resolution of No Confidence sends a message to the American public and the Administration that there is wide-spread concern over the leadership of the Department of Justice.    The resolution itself has no legal import and any decision to terminate Mr. Holder lies with President Obama, and of course Mr. Holder always maintains the ability to voluntarily resign.  This expression of  a lack of confidence is not an article of  “impeachment” of the Attorney General under Article I, Section 2, clause 5 and Section 3, clause 6 of the Constitution.   

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