The House of Representatives Judiciary Committee voted May 8 to approve a resolution to go forward with contempt of Congress proceedings against Attorney General William Barr. The move, driven along entirely partisan lines by House Democrats, is a response to the failure by the AG to turn over the unredacted version of special counsel Robert Mueller’s report. The committee voted 24-16, exactly along party lines, to bring a contempt vote to the House floor.
President Donald Trump asserted executive privilege the same day over the unredacted report — a decision that changes the potential outcome of a contempt charge. The recent history of interaction between the DOJ and Congress suggests that criminal contempt will not be prosecuted by the former for an executive officer’s refusal to release to Congress material protected by executive privilege.
“Faced with Chairman Nadler’s blatant abuse of power,” White House press secretary Sarah Sanders said in a statement, “and at the Attorney General’s request, the President has no other option than to make a protective assertion of executive privilege.”
The authority of Congress to hold an individual in contempt is a means by which it can obtain redress against actions taken to obstruct the legislative process. Contempt proceedings can be moved forward in three ways, though each option is fraught with difficulty.
Options for Pursuing a Contempt Charge
Criminal contempt allows Congress to refer the case to the DOJ for prosecution. If the subject of the charge – the contemnor – is an officer of the executive branch, however, the Department may well decline to prosecute. This scenario is even more likely, of course, when the alleged contemnor is the head of the DOJ. Former Attorney General Eric Holder, after being held in contempt by House Republicans, continued to serve in his post unaffected for three more years.
Civil contempt is an avenue by which Congress can initiate the enforcement of a subpoena that has been defied. The case is referred, again, to the DOJ and it falls to the judicial branch to enforce the subpoena. This can be a lengthy process, however, until a final ruling is delivered.
It may even transpire that the court would decline to rule on the matter, citing something known as the “nonjusticiability doctrine.” This doctrine holds that, in matters regarding a complaint against an executive action, the politically-neutral judicial branch should not hear a case that has inherent political consequences.
The third option – never used in recent history – is known as inherent contempt, whereby Congress has the authority to order the imprisonment of the contemnor until he or she agrees to comply with congressional demands. In such a case, the contemnor is detained and tried in either the House or the Senate, depending on which chamber initiated contempt proceedings.
In Barr’s case, House Democrats could have a difficult task ahead of them should they choose to pursue a contempt charge any further than simply bringing it to a vote on the House floor. It can certainly be argued that Judiciary Committee Chairman Jerrold Nadler (D-NY) presented the attorney general with an unreasonable – even unmeetable – deadline for handing over an unredacted copy of the Mueller report.
Though the head of the Justice Department, Barr is still constrained by existing statutes concerning the release of classified information. The release of certain material redacted in the report, specifically grand jury testimony, would require those who wish to see it to obtain a court order.
If Nadler expected Barr to produce the unredacted report without a court order to do so, then the congressman was literally ordering the AG to break the law.
Civil contempt, then, would seem an unlikely option and criminal contempt would almost certainly go nowhere since the DOJ will not prosecute. Are Democrats really going to invoke inherent contempt and order the AG detained and brought before the House for trial? Such a prospect would seem not only dangerously extreme and tyrannical but also highly destructive – as much to the Democrats’ public credibility and reputation as to anything or anybody else.
Democrats insist the president had already waived executive privilege while the special counsel conducted its investigation. Trump did not, at any time, assert executive privilege in order to deprive Mueller of the documents or communications his team requested.
Special counsel to the president, Emmet Flood, had previously addressed a letter to AG Barr in which he pointed out that the Trump’s decision not to assert executive privilege over material requested by Mueller did not imply that such privilege was waived for any other materials or for any other purpose:
“The President therefore wants the following features of his decision to be known and understood:
(1) His decision not to assert privilege is not a waiver of executive privilege for any other material or for any other purpose;
(2) His decision to permit disclosure of executive-privileged portions of the report does not waive any privileges or protections for the SC 0?s underlying investigative materials such as, for example, FBI Form 302 witness interview summaries and presumptively privileged documents made available to the SCO by the White House.”
Why Democrats Must Discredit AG Barr
Thus, the motivation of Nadler and company to hold Barr in contempt is little more than another means by which they attempt to discredit the AG while his department investigates the murky origins of the Trump-Russia collusion hoax and the FBI’s investigation of President Donald Trump’s election campaign team.
Trump’s opponents can, perhaps, see the writing on the wall. The house of cards that was the Russia collusion story is folding around them. As it collapses, a nefarious political plot against the president is revealed. The only way in which the conspirators can hope to emerge unscathed is to turn the tables and present themselves as the victims; subjects of political persecution by a partisan attorney general.
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