By: Todd Ruger of Roll Call
The House Judiciary Committee approved a resolution Wednesday to hold Attorney General William Barr in contempt of Congress over access to the full special counsel report, escalating a broadening clash between the legislative and executive branches over congressional oversight.
The resolution, approved on a 24-16 roll call vote along party lines, came after days of negotiations with the Justice Department in public and private that came down to how many lawmakers and staffers could see and discuss the report from Robert S. Mueller III, and how much material they would see because of court orders protecting it.
At the outset of a meeting that spanned more than six hours, House Judiciary Chairman Jerrold Nadler, D-N.Y., suggested the resolution addressed broader concerns over the separation of powers.
But House Judiciary Chairman Jerrold Nadler, D-N.Y., suggested the resolution addressed broader concerns over the separation of powers.
“Our fight is not just about the Mueller report, although we must have access to the Mueller report," Nadler said. "Our fight is about defending the rights of Congress as an independent branch to hold the president, any president, accountable."
The Justice Department late Tuesday said Barr would be compelled to request that President Donald Trump invoke executive privilege over the material covered by the congressional subpoena.
Ahead of the vote, Justice Department officials informed Nadler in a letter that they asserted executive privilege over all the Mueller report materials subpoenaed by the panel.
“This is not a step we take lightly,” Nadler said.
Nadler said the Justice Department’s legal arguments “are without credibility, merit, or legal or factual basis” and moved forward with the vote.
“The Department’s decision reflects President Trump’s blanket defiance of Congress’s constitutionally mandated duties,” Nadler said. “In the coming days, Congress will have no choice but to confront the behavior of this lawless administration.”
During a heated partisan discussion, Democrats accused Barr and the Trump administration of having contempt for congressional oversight, while Republicans called the move premature and unneeded.
Rep. Steve Chabot, R-Ohio, called the committee’s recent actions “disgraceful,” while Rep. Louis Gohmert, R-Texas, said he was “really here in mourning, for a once great Judiciary Committee.”
Rep. Doug Collins, R-Ga., said that the committee moved from request to contempt vote in only 43 days, compared to the 250 days the House Oversight Committee waited in 2012 before voting to hold then-Attorney General Eric H. Holder Jr. in contempt.
“Why this rush?” Collins said.
Collins called the move “without any valid legislative or administrative reason” and “a cynical, mean-spirited, counterproductive and irresponsible step.”
Rep. Jim Sensenbrenner, R-Wis., said the attorney general would have to commit a crime of violating grand jury secrecy to fully comply with a subpoena for the unredacted version of the Mueller report.
“What we’re doing here is forcing the attorney general to break the law, to place in jeopardy innocent people who were not involved in any of the things Mr. Mueller ended up investigating, and shaming ourselves in the process,” Sensenbrenner said.
Rep. Sheila Jackson Lee, D-Texas, paused before speaking at the hearing because she said this is a “moment in history.”
She said Barr and Trump broadened executive privilege and it was a “purposeful collapse” of negotiations.
“The president now seeks to take a wrecking ball to the constitution of the United States over America,” Lee said.
The resolution now goes to the full House, where it has the support of Speaker Nancy Pelosi, D-Calif. But even if the House approves it, federal prosecutors in the Trump administration are unlikely to pursue a criminal contempt case against the nation’s top law enforcement official. “Reality: All players know this is mostly theater,” Ross Garber, who teaches political investigations and impeachments at Tulane Law School, tweeted Tuesday night.
“There will be a contempt vote. There will not be a criminal prosecution. Committee will file civil case," Garber added. "There will be more negotiations and probably some additional info provided by DOJ. Case will last until after 2020 elections.”
After the 2012 Holder contempt vote, no criminal charges were filed against Holder, and the lawsuit over the records lawmakers saw stretched for years.
Marty Lederman, a professor at Georgetown University Law Center, tweeted that if the negotiations come down to how many members can view redacted material from Special Counsel Robert S. Mueller III’s report, and how many staff members each can bring, that “this would be an *absurd* hill on which *either* side should plant its flag in litigation. Surely a compromise is possible.”
Pelosi said Wednesday, when asked at a Washington Post live event whether House Democrats would consider impeaching Barr, that: “Nothing is ever off the table.”
And the Barr contempt vote comes amid increasing tension between the Democratic-led House and the Trump administration over subpoenas from various committees.
White House Press Secretary Sarah H. Sanders blasted Nadler's efforts as a "blatant abuse of power" intended to distract from the president's agenda.
Nadler said the Judiciary Committee will hold former White House counsel Donald McGahn in contempt of Congress if he does not comply with a subpoena to appear before the committee on May 21.
McGahn, who missed a first deadline in a subpoena to turn over the documents because the White House asserts it has legal custody of them, faces a second deadline two weeks from now, when the Judiciary Committee has subpoenaed him to testify about the alleged obstruction of justice.