Attorney General William Barr’s performance before the Senate Judiciary Committee, and his refusal to appear before the House Judiciary Committee, underscored why Democrats are determined to get the full Mueller report and underlying evidence. Members of Congress are outraged about Barr’s deceptive answers to their questions. Some even want to prosecute him for it. But the fight that matters most is over his agency’s disclosure of the full report and all its underlying investigative material, not whether he lied to Congress.
And that fight, with grave implications for our constitutional system of checks and balances, seems destined for a courtroom in the not-too-distant future. Recent events indicate that House Judiciary Chair Jerrold Nadler, who gave Barr until 9 a.m. Monday to comply with the subpoena for the investigative materials, is positioning himself to win that battle while Barr’s actions create delay and roadblocks for Democrats but ultimately undercut the administration’s legal position.
Some suggested that the administration’s outlandish position, particularly Trump’s vow to “fight all the subpoenas,” could be written off as rhetoric that would soon yield to constitutional norms. But Barr’s actions this week indicate that this position is part of a strategy to delay Democrats’ investigation of the evidence of obstruction of justice found by Special Counsel Robert Mueller.
Barr’s refusal to appear before House Judiciary fits that pattern. Barr waited until the eve of his agreed-upon testimony to decline to appear, complaining that it would be inappropriate for the committee to use staff attorneys to question him. This ensured additional delay while Democrats subpoenaed Barr. If Barr refuses to comply, Democrats can hold him in contempt of Congress, but that process could take months to play out.
Barr, who seems determined to force the House to make a politically risky move on impeachment, appears committed to delay and stonewall even though doing so might weaken the administration’s legal position in the long run. It seems he has decided this is a better gamble than submitting to rigorous questioning from trained lawyers who could elicit answers he might regret in a later court proceeding.
The most dangerous and important position taken by Barr this week was his Justice Department’s refusal to produce the full Mueller report to House Judiciary. Assistant Attorney General Stephen Boyd, in a letter to the committee, objected that the committee sought to “use Justice Department investigative files to re-investigate the same matter that the Department has investigated and to second-guess decisions that have been made by the Department.”
You don’t have to be a Constitutional scholar to see the problem here. The Constitution gives the House “the sole Power of Impeachment,” and the House cannot consider whether to impeach without the ability to investigate wrongdoing by the president. Permitting an administration to withhold evidence of potential criminal wrongdoing by the president on the grounds that the House cannot “re-investigate” the matter or “second-guess” the executive branch would prevent the House from conducting impeachment inquiries going forward.
But while the law is quite clear, the path to the courthouse is not. Because the stakes are so high, House Democrats will have to proceed cautiously. Move too fast and a judge could decline to grant extraordinary relief to the House because the issue is not “ripe for review.” Move too slowly and risk emboldening an already intransigent White House.
This is a showdown that could determine whether Congress can effectively check the presidency going forward, and Nadler recognizes that resolving this question is “an obligation of our office.” As he put it, “The challenge we face is that if we don’t stand up to him together today, we risk forever losing the power to stand up to any president in the future . . . the system of not having a president as a dictator is very much at stake.”
With stakes this high, it’s understandable that Nadler wants to do everything he can to maximize his position in future litigation against the administration over the full Mueller report and underlying materials. While the House can hold Barr in contempt without a vote from the Senate, it will be mostly symbolic because the Justice Department won’t prosecute its own boss for criminal contempt.
The House cannot easily enforce subpoenas on its own. Technically it has the power to do so but has not used it since 1935 in part because Congress is not set up to enforce laws—that’s what the executive branch does. Although Senator Sam Ervin, in April 1973, famously threatened during Watergate to send the Senate’s sergeant at arms to bring a White House aide to the Capitol, no one really expects the top law officer in the Senate to arrest the nation’s top law enforcement official.
Ultimately, a fight over disclosure will end up in the courts, and Nadler’s careful moves appear to be designed to position him to win that court battle. Judges are not law robots who spit out a legal result upon command. They are human beings that exercise judgment, and Nadler’s patience appears designed to show a judge that he is accommodating any legitimate or reasonable concerns that the Justice Department could have. But he knows he has to make a stand, which explains Friday’s ultimatum.
Purely as a legal matter, Nadler’s position could not get much stronger. It is hard to imagine a federal judge concluding that the executive branch can choose to keep evidence of potential criminal wrongdoing by the president from the House of Representatives, particularly when any claims of privilege have already been waived.
But courts are wary of wading into partisan political fights between different branches of government. Although there are notable exceptions—Bush v. Gore comes to mind—judges often try to sidestep thorny political fights like this one until they become more or less unavoidable. Nadler’s moves can be understood as a way of reducing the chance that a court will find a reason not to delay a decision or not reach a decision altogether.
Nadler’s patience has greatly reduced the chance that a court could sidestep a decision by concluding that this dispute is not “ripe” for review, because he waited for the Justice Department to refuse to comply with a subpoena and to articulate its reasons for doing so. On Wednesday, the Justice Department refused to comply and put its legal position in writing. Now there can be no real question there is a dispute worthy of a court’s attention between the House Judiciary Committee and the Justice Department.
Barr’s performance this week will cost the Trump administration in the courts. The administration may argue that the House should trust the Justice Department not to withhold material for improper reasons, but concerns by House Democrats will appear more reasonable to a judge after Barr deliberately misled Congress and the American people on several occasions. It will be hard for the Justice Department to argue that the House should just take Barr’s word at face value.
Unfortunately for House Democrats, litigation takes time, and it could be months before they prevail. In the meantime, House Democrats will have to work around the administration as much as possible. They are reportedly bypassing the Justice Department to negotiate directly with Mueller for his testimony, which would be a good starting point. But it will be hard for House Democrats to conduct a proper investigation, and to engage in meaningful questioning of hostile witnesses, without the evidence that the Justice Department now withholds from them. Perhaps that is why Barr is determined to delay even if the outcome will be unfavorable to him.
Article originally published on POLITICO Magazine
Source: https://www.politico.com/magazine/story/2019/05/03/a-constitutional-showdown-between-the-white-house-and-congress-just-got-closer-226794
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The Article Was Written/Published By: Renato Mariotti
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