- Two major developments in the fight between Congress and the White House over Robert Mueller’s findings in the Russia investigation laid bare how Democrats overplayed their hand while trying to get Mueller’s unredacted report.
- The House Judiciary Committee voted Wednesday to hold Attorney General William Barr in contempt of Congress.
- In retaliation, President Donald Trump invoked executive privilege over Mueller’s report, its underlying evidence, and all material related to the report that’s been subpoenaed by Congress so far.
- The speed with which Democrats moved to hold Barr in contempt is unprecedented. And Trump’s response – invoking privilege – is a stall tactic that will force Democrats to jump through more hoops to get what they want.
- “It’s hard for Democrats to argue [before a judge] why they didn’t at least take up the [DOJ’s] initial offer to view a less redacted version of the report before moving forward with contempt,” said a former congressional lawyer.
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The war between the White House and Congress hit a flashpoint this week as both sides took drastic measures in their fight over the special counsel Robert Mueller’s unredacted report on the Russia investigation.
The Democrat-led House Judiciary Committee voted on Wednesday to hold Attorney General William Barr in contempt of Congress for failing to meet this week’s deadline to turn over the unredacted report and its underlying evidence.
In turn, the White House – acting on Barr’s advice – invoked executive privilege over the entire report, the underlying evidence, and all other material related to the report that Congress has subpoenaed so far.
The move set the stage for what’s likely to be a lengthy court fight between the executive and legislative branches.
It also laid bare how Democrats overplayed their hand in trying to get Mueller’s full report, and how it’s coming back to bite them.
Justice Department officials most recently offered to allow 12 lawmakers and two staffers for each to view a minimally redacted version of the report. They also said the lawmakers and staffers could keep any notes they took on the document.
Democrats instead pushed for the full judiciary and intelligence committees – and three staffers of each lawmaker – to view the entire report, the underlying evidence, and the grand-jury material.
After the DOJ refused, the House Judiciary Committee began voting to hold Barr in contempt, and President Donald Trump retaliated by invoking executive privilege over Mueller’s report.
Following Trump’s privilege assertion, the most likely next step for Congress will be to go to court to obtain a legal declaration saying the claim is without merit.
But Frank Bowman, a law professor at the University of Missouri, told INSIDER that “even though the breadth of Trump’s executive-privilege claim shows it’s transparently invalid, the objective is to make Congress jump through a bunch of hoops in the courts, which will be a slow process.”
“It’s a stall,” Bowman said.
Bowman predicted that the privilege claim would likely be struck down.
“This assertion is a blanket denial of Congress’ ability to inquire about executive misconduct,” he said. “I can’t imagine the judiciary would ultimately put up with this.”
But that doesn’t mean Congress will come out on top.
Mitchel Sollenberger, a politics professor at the University of Michigan-Dearborn, told INSIDER that more than anything else, he was shocked at the speed with which House Democrats moved to hold Barr in contempt.
The last time Congress held an attorney general in contempt was in 2012, when 17 Democrats joined the Republican majority after Eric Holder repeatedly refused to turn over documents related to Operation Fast and Furious.
Ultimately, a federal judge tossed out the charges, and Holder avoided severe penalties. But nearly a year passed as Congress went from negotiating with the DOJ to moving forward on a contempt citation against Holder.
In Barr’s case, as Rep. Doug Collins, the ranking member of the House Judiciary Committee, said on Wednesday, Democrats “have moved from request to contempt vote in only 43 days, and yet the Justice Department remained at the negotiating table – waiting for Democrats to arrive in good faith.”
Of course, there are some key differences between Holder’s contempt proceedings and their fallout, and what’s happening now.
Holder’s case dealt primarily with Congress’ efforts to get records related to the 2012 gunwalking scandal sanctioned by the DOJ and carried out by the US Bureau of Alcohol, Tobacco, Firearms and Explosives as part of a counternarcotics strategy.
Barr, meanwhile, has been accused of acting as Trump’s personal defence lawyer and shielding him from public scrutiny by watering down Mueller’s findings and echoing Trumpworld’s claims that there was “no collusion.”
In the end, Mueller’s team painted a damaging portrait of a campaign that repeatedly welcomed interference by a hostile foreign power in the US election, and a president whose attempts at obstructing justice failed largely because his own advisers refused to carry out his directives.
Still, referring to Democrats’ vote to hold Barr in contempt for refusing to turn over the full report, Sollenberger said, “there’s a dance that goes on between the executive branch and legislative branch when it comes to getting documents and testimony … This dance hadn’t even entered its first move, so I’m flabbergasted at where we are right now.”
In the face of Barr’s refusal to comply with their demands, if Democrats want access to sensitive information in the report, like grand-jury material, they could go to court.
“But if this goes to court, there’s a strong chance the judge would say the DOJ was being pretty reasonable with its offers,” Michael Stern, a former lawyer who was a senior counsel to the House of Representatives from 1996 to 2004, told INSIDER.
He added: “It’s logical for the DOJ to offer a limited look while it conducts a more thorough review of the redactions. And it’s hard for Democrats to argue why they didn’t at least take up the initial offer to view a less redacted version of the report before moving forward with contempt.”
Stern described executive privilege as a “balancing test” between the interests of the executive branch and those of the legislative branch.
“The judge would likely say, ‘OK, there are issues of executive privilege here, but you want me to try to resolve that when you haven’t even taken up the offer of looking at the material to explain why you need it,'” he added. “So they’d probably end up telling lawmakers to do that first before asking for more.”
In other words, Democrats could spend months, possibly years, tangled up in the legal process and end up with the same choice they were given to begin with.
The only way to circumvent that, experts say, is for congressional Democrats to argue that they need access to the full report and grand-jury material because they’re relevant to impeachment proceedings. But senior Democrats have pumped the brakes on impeachment for fear of political backlash.
In all, from both a political and a legal standpoint, if Democrats’ “interest is simply getting the information for further investigation,” Stern said, “they didn’t handle this well.”