Written by Nicholas Fandos
The House Judiciary Committee voted Wednesday to recommend that the House hold Attorney General William P. Barr in contempt of Congress for failing to turn over Robert Mueller’s unredacted report, hours after President Donald Trump asserted executive privilege to shield the full report and underlying evidence from Congress.
The committee’s 24-16 contempt vote, taken after hours of debate over the future of American democracy, was the first official action to punish a government official in the standoff over the Mueller report. The Justice Department decried the move as an unnecessary and intended designed to stoke a fight.
After the vote, the Judiciary Committee chairman, Rep. Jerrold Nadler, D-N.Y., swatted away questions about possible impeachment, but added, “We are now in a constitutional crisis.”
The contempt vote raised the stakes in the increasingly tense battle over evidence and witnesses as Democrats investigate Trump over behavior detailed by Mueller, the special counsel. 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.
“Our fight is not just about the Mueller Report — although we must have access to the Mueller report,” Nadler said during a debate. “Our fight is about defending the rights of Congress, as an independent branch, to hold the president, any president, accountable,”
The Justice Department, the White House and House Republicans lined up to contest that claim, shooting back that Democrats were the ones abusing their powers to manufacture a crisis.
In a statement, a spokeswoman for the Justice Department, Kerri Kupec, deplored the contempt vote as “politically motivated and unnecessary,” and the two sides traded blame over who had cut off weeks of negotiations over a possible compromise.
“Regrettably, Chairman Nadler’s actions have prematurely terminated the accommodation process and forced the president to assert executive privilege to preserve the status quo,” Kupec said. “No one, including Chairman Nadler and his committee, will force the Department of Justice to break the law.”
Though Trump has repeatedly tried to withhold information from Congress, and pledged to object to all House subpoenas, the executive privilege assertion is his first use of the secrecy powers as president.
The Justice Department, which asked the president to step in, described the assertion as a “protective” measure that would give Trump time to fully review the materials before making a final determination about executive privilege. But the timing signaled that the White House was eager for a fight.
“The American people see through Chairman Nadler’s desperate ploy to distract from the president’s historically successful agenda and our booming economy,” said the White House press secretary, Sarah Huckabee Sanders.
It was not immediately clear when the full House would vote, and the intervening period could allow Barr time to negotiate. Nadler said he expected a House vote “rapidly.”
After a contempt vote, the House was likely to file a lawsuit seeking to enforce their subpoena, but the ensuing legal process could take years, effectively stalling Democrats’ quest.
Passage of such a resolution would be only the second time in American history that the nation’s top law enforcement official is found to be in contempt of Congress.
The Judiciary Committee was not the only House panel locked in conflict over the material. During the contempt hearing on Wednesday, the Intelligence Committee quietly sent the Justice Department its own subpoena for the full Mueller report and underlying evidence, as well as any counterintelligence and foreign intelligence material generated during the special counsel investigation. The panel likewise blamed the department for failing to accommodate its bipartisan oversight interest in the material and argued that as the body that oversees the intelligence community, it had special authorities to view the secretive material.
“The law is on our side,” said the committee’s chairman, Rep. Adam B. Schiff of California. “The committee’s efforts to obtain necessary documents to do our constitutionally-mandated oversight work will not be obstructed.”
Barr voluntarily released a redacted version of the special counsel’s 448-page report voluntarily last month, which concluded that despite ample efforts by the Kremlin, the Trump campaign did not conspire with Russia to undermine the 2016 presidential election. Mueller also laid out at least 10 instances of possible obstruction of justice, and said he could not make a traditional judgment because of various legal constraints.
But Democrats say Barr’s version is not good enough, and they have accused the attorney general of stonewalling a legitimate request for material they need to carry out an investigation into possible obstruction of justice and abuse of power by Trump. The Democrats’ request includes secretive grand jury information and other evidence.
The committee’s 27-page contempt report lays out the committee’s need for the report and offers an accounting of attempts to get Barr to share the materials first voluntarily and then under subpoena.
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.
The Justice Department had other objections to the subpoena. Compliance would require the department to violate “the law, court rules, and court orders” as well as grand jury secrecy rules, a Justice Department official, Stephen E. Boyd, wrote. Republicans in the Judiciary Committee hearing room returned to that point again and again as they accused Democrats of putting Barr in an untenable situation of choosing between their subpoena and the law.
But Democrats said they did not expect Barr to break the law and unilaterally release grand jury secrets, but rather to join them in petitioning a judge to unseal material for the grand jury for committee use.
Nadler said after the vote that Democrats intended to go to the judge on their own authority.
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, 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. Nadler said Wednesday it could delay a potential hearing with Mueller himself in the Judiciary Committee. And it could also limit testimony by Donald McGahn, a former White House counsel and key witness in the special counsel’s investigation, scheduled under subpoena for May 21.
Democrats’ frustration in the hearing room was clear. “I can only conclude that the president now seeks to take a wrecking ball to the Constitution of the United States of America,” said Rep. Sheila Jackson Lee of Texas.
Republicans rose one after another to defend the attorney general and urge the Democrats to turn their investigative focus to the origins of what they see as a special counsel investigation cooked up to smear the president.
Rep. Jim Sensenbrenner, R-Wis., who was one of the “managers” of President Bill Clinton’s impeachment, criticized Democrats for lending support to a “character assassination squad running around this town” sullying innocent people.
There is little precedent for holding an attorney general, or any Cabinet-level official, in contempt. House Republicans did it for the first time in 2012, when they held Attorney General Eric H. Holder Jr. in contempt in connection with requests for information about the botched “Fast and Furious” gun trafficking investigation. Republicans frequently cited that case on Wednesday in an effort to paint Democrats as unreasonable and impatient. They had waited hundreds of days before escalating their fight over documents to a contempt citation, they said. Democrats waited just a few weeks in the case of Barr.
“Why this rush?” asked Rep. Doug Collins of Georgia, the top Republican on the committee. “Without any valid legislative or administrative reason, we can only assume Democrats, led by the chairman, have resolved to sully Bill Barr’s good name and reputation.”
The example is a potentially cautionary one for both sides. Despite President Barack Obama’s assertion of executive privilege over the material in questions, House lawmakers ultimately prevailed in court, forcing the administration to hand over the evidence. But the process took years to play out and could have taken longer if the Obama administration had appealed a court’s decision.
In this case, a contempt citation does not guarantee an outcome Democrats want. While defying a congressional subpoena is technically a misdemeanor crime, it is up to the Justice Department to decide whether or not to prosecute. And though Democrats have mused in recent weeks about the authority of the House to apply punishments, including fines and detention, those outcomes have little modern precedent and are unlikely to actually be pursued.
Instead, a contempt citation would effectively push the dispute into the courts, where a judge could decide whether to force the administration to hand over the material. But that process would be lengthy, especially with Democrats likely to turn to the courts in a range of other disputes over Trump’s tax returns and over other potential witnesses to the obstruction investigation.
Democrats were equally apocalyptic in their language.
Rep. Ted Deutch, D-Fla., called the administration’s stonewalling “the definition of a constitutional crisis.”