As expected, the Democratic majority on the House Judiciary Committee has voted to hold Attorney General William Barr in contempt for refusing to turn over an unredacted copy of the report of Special Counsel Robert Mueller to Congress:
WASHINGTON — The House Judiciary Committee voted Wednesday to recommend the House hold Attorney General William P. Barr in contempt of Congress for failing to turn over Robert S. Mueller III’s unredacted report, hours after President Trump asserted executive privilege to shield the full report and underlying evidence from public view.
The committee’s 24-16 contempt vote, taken after hours of debate that featured apocalyptic language about the future of American democracy, marked the first time that the House has taken official action to punish a government official or witness amid a standoff between the legislative and executive branch. The Justice Department decried it as an unnecessary and overwrought reaction designed to stoke a fight.
The drama raised the stakes yet again in an increasingly tense battle over evidence and witnesses as Democrats investigate Mr. Trump and his administration. By the day’s end, it seemed all but inevitable that the competing claims would have to be settled in the nation’s courts rather than on Capitol Hill, as Democrats had initially hoped after the initial delivery of Mr. Mueller’s report.
“Our fight is not just about the Mueller Report — although we must have access to the Mueller report. Our fight is about defending the rights of Congress, as an independent branch, to hold the president, any president, accountable,” said Representative Jerrold Nadler of New York, the Judiciary Committee chairman, during a grueling debate that ended with a vote along party lines.
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Lawmakers convened a little after 10 a.m. Wednesday to formally draft and vote on the committee’s 27-page contempt report. The document lays out the committee’s need for the report and offers an accounting of attempts to get Mr. Barr to share the materials first voluntarily and then under subpoena.
“Although the committee has attempted to engage in accommodations with Attorney General Barr for several months, it can no longer afford to delay, and must resort to contempt proceedings,” the report reads.
The Justice Department had tried to stave off the committee vote, offering to lawmakers some concessions around a less redacted version of the Mueller report that Democrats ultimately deemed insufficient.
Complying with the subpoena, Mr. Boyd wrote, would require the department to violate “the law, court rules, and court orders” as well as grand jury secrecy rules. Republicans in the Judiciary Committee hearing room returned to that point again and again as they accused Democrats of putting Mr. Barr in an untenable situation of choosing between their subpoena and the law.Democrats said they did not expect Mr. Barr to break the law and unilaterally release grand jury secrets. Rather, they said they had repeatedly asked him to join the committee in petitioning a judge to unseal material for the grand jury for committee use. He refused. Democrats agreed to an amendment from Representative Matt Gaetz, Republican of Florida, that clarified the committee did not expect Mr. Barr to break the law and unilaterally release the grand jury material.
Democrats view the president’s privilege claim as bunk, since much of the report and evidence have either been released publicly or shared with lawyers in the special counsel case.Still, Mr. Trump’s invoking of privilege for the first time as president could tie up the material in court and significantly complicate Democrats’ efforts to call other witnesses. Mr. Nadler said Wednesday it could delay a potential hearing with Mr. Mueller himself in the Judiciary Committee. And it could also limit testimony by Donald F. McGahn II, a former White House counsel and key witness in the special counsel’s investigation, scheduled under subpoena for May 21.
The dispute with the Justice Department generally and Barr in particular centers around the delays that have been encountered in the Justice Department’s response to demands for an un-redacted copy of the report of Special Counsel Robert Mueller. There are also ongoing disputes regarding subpoenas for other documents related to the Russia probe sent to both the Justice Department and the White House. So far at least, the Administration has sought to obstruct those subpoenas and refuse to provide the documents in question, a move that sets up the probability of a court battle between the House and the White House over document production, a legal fight that could last well into the 2020 election cycle and which would likely eventually have to be resolved by the Supreme Court. The most recent development in the matter came just hours before yesterday’s committee vote when the Trump Administration officially invoked Executive Privilege with respect to providing a full copy of the Mueller report. As I explained in my post yesterday, while there may be some parts of the full Mueller Report that should properly remain confidential, the idea that the entire report is covered by Executive Privilege seems dubious at best.
This is only the second time in American history that a Congressional Committee has held a Cabinet member in contempt. The first time occurred seven years ago when the House Oversight Committee voted to hold then Attorney General Eric Holder in contempt for his alleged failure to provide documents related to the so-called “Fast & Furious” investigation. That vote was quickly followed up by a vote by the full House of Representatives to do the same which, like the Committee vote, fell largely on party lines. After the House vote, the matter was referred to the Justice Department, which of course declined to act on the matter. This led the House to file a civil contempt proceeding in U.S. District Court in Washington which essentially died when Holder left office after 2012 election. Interestingly enough, the Obama Administration also attempted to use Executive Privilege to prevent a contempt citation in that case.
It’s expected that the process will unfold in a similar manner in the Barr case. The Committee vote will obviously be on party lines, and it’s expected that the full Democratic-controlled House will endorse the contempt citation. The matter will then be forwarded to the Trump Justice Department, which will essentially be asked by the House of Representatives to pursue a case against its own Attorney General. That will most likely not happen, and the matter will then be back in the House’s court.
At that point, the House will have two options.
One option would be to file a civil suit to hold Barr in contempt as the Republicans did in 2012. This would leave the matter up to a Federal Judge but would preclude the possibility of criminal prosecution. This civil lawsuit would also likely be tied up in Federal Court for years.
The House’s second option is the more radical one. If the full House votes to hold Barr in contempt, then the House would have the authority under its own “inherent contempt” powers to order the House Sergeant At Arms to arrest Barr and imprison him until he purges himself of the contempt. Contrary to some reports there is not really a jail in the U.S. Capitol that could be used for this purpose, so it seems likely that the House would transfer custody to the Federal Bureau of Prisons, which would mean that Barr would likely be jailed either in the District or in the jail for the City of Alexandria, Virginia, which often takes custody of federal prisoner being held before trial or in contempt situations. This avenue of enforcement has not been pursued very much in recent times, though, and the odds that the House will choose this option seem rather low.
As noted above, the most common outcome in these types of cases is for the dispute between the Executive and Legislative Branches to end up being resolved in the end. Perhaps that will happen here, but given the way things have gone between the two parties since the start of the Obama Administration, it’s also entirely likely that neither side will be willing to blink and we’ll be headed to Court. An additional factor is the fact that the President himself does not appear willing to comply with Congressional subpoena’s regarding the Mueller report or any other issue that is currently being investigated regarding his Administration. This sets the stage for an epic showdown in the Courts in the coming months between the two branches over the scope of Congressional investigatory and oversight authority.
Here’s the committee’s report on holding Barr in contempt:
Report of House Judiciary C… by on Scribd
