House Votes To Allow Contempt Proceedings Against Barr And McGahn

With the Trump Administration continuing to stonewall investigations, the House of Representatives is seeking to ramp up the pressure.

Late yesterday, the House of Representatives authorized Committee Chairman to go forward with seeking civil contempt charges against Attorney General William Barr and former White House Counsel Don McGahn:

WASHINGTON — The House voted on Tuesday to authorize the Judiciary Committee to go to court to enforce two subpoenas related to Robert S. Mueller III’s inquiry — threatening to open a new legal front in the Democrats’ efforts to investigate President Trump and his administration.

The resolution, which passed along party lines, 229 to 191, grants the Judiciary Committee the power to petition a federal judge to force Attorney General William P. Barr and the former White House counsel Donald F. McGahn II to comply with congressional subpoenas that they have either completely or partly defied.

But it also empowers other House committees to move more quickly to court in future disputes — authorities that could quickly be put to the test. The House Oversight and Reform Committee, for instance, is expected to vote Wednesday to recommend separate contempt of Congress citations against Mr. Barr and Commerce Secretary Wilbur Ross over that panel’s investigation into the administration’s efforts to add a citizenship question to the 2020 census.

“We’re here in a fight for the soul of our democracy, and we will use every single tool that is available to us to hold this administration accountable for its actions and make sure the government is working effectively and efficiently for all the people,” Representative Elijah E. Cummings, Democrat of Maryland and the oversight panel’s chairman, told reporters after the vote.

Despite earlier threats and a recommendation from the Judiciary Committee, Democrats stopped short of formally holding either Mr. Barr or Mr. McGahn in contempt of Congress for now, forgoing an accusation of a crime in favor of what they hope is continued leverage to force cooperation. The decision appears to be based, at least in part, on new signs of compromise from the Justice Department, which on Monday agreed after weeks of hostilities to begin sharing key evidence collected in Mr. Mueller’s obstruction of justice investigation.

The committee had demanded that Mr. Barr and the Justice Department hand over the full text of the special counsel’s report and the evidence underlying it, and that Mr. McGahn testify in public and produce evidence that he had given Mr. Mueller.
Neither the Justice Department nor lawyers for Mr. McGahn immediately commented on the vote.
The House Democratic leaders called the vote a vital step in their methodical march to expose Mr. Trump’s behavior and pressure the Trump administration to cooperate with congressional oversight requests. They also clearly saw it as a means of holding off calls within their ranks to quickly move to impeach the president, arguing that it showed there are other ways of using their power to hold him accountable.
“The responsibility the speaker and I have is to try to move ahead in a measured, focused, effective way to garner the information that the American people need to make determinations, and for us to make determinations, and I think we’re doing that,” said Representative Steny H. Hoyer of Maryland, the House majority leader.
Speaker Nancy Pelosi, addressing lawmakers on the House floor shortly before the vote, framed the court authorizations as a step toward upholding the principle that Congress was “constitutionally obligated and legally entitled to access and review materials from the executive branch.”

If they follow through in filing the suits, Democrats will be effectively calling on a third branch of government, the federal judiciary, to settle a dispute between the legislative and executive branches over Congress’s right to conduct investigations and the extent of the president’s authority to shield evidence from lawmakers. The answer could have significant implications not just for Mr. Trump, but for oversight of the executive branch for decades to come.

But there is no guarantee the courts will give them a useful outcome — at least not quickly. Past cases have stretched on for months or even years, a fact that could become problematic for Ms. Pelosi and her team as they seek to keep calls for impeachment at bay.

It was not immediately clear how quickly Democrats would file a suit against Mr. McGahn, a key figure in Mr. Mueller’s report, or if they would seek court enforcement against Mr. Barr at all. The Judiciary Committee chairman, Representative Jerrold Nadler of New York, told reporters on Tuesday that the House would not dawdle but that timing would depend on the House general counsel who represents lawmakers in court. The counsel, Doug Letter, will address Democrats on Wednesday morning in a closed meeting.

“We’re not going to go to court with the attorney general so long as in good faith they do what they have agreed to do,” Mr. Nadler said after the vote.

Tuesday’s resolution also gives Mr. Nadler the authority to petition a federal judge for access to secretive grand jury material amassed in the course of Mr. Mueller’s investigation. Such information rarely becomes public, but Mr. Nadler has made the case that his committee needs access to it to determine whether impeachment is warranted. His efforts to persuade the Justice Department to join him in making the request were rebuffed.

More from The Washington Post:

The House took its strongest step yet in the standoff with President Trump over congressional oversight, voting Tuesday to seek court enforcement of subpoenas for Attorney General William P. Barr and former White House counsel Donald McGahn.

On a party-line vote of 229 to 191, the House passed a resolution that would empower the House Judiciary Committee to go to court against Barr and McGahn over noncompliance with requests for documents and testimony.

The vote keeps Democrats squarely on a meticulous investigative track favored by House Speaker Nancy Pelosi (D-Calif.) and other top leaders — and away from the formal impeachment inquiry that some 60 rank-and-file Democrats and several 2020 presidential candidates have been seeking.

Still, the House vote reflects the frustration among Democrats with Trump’s unwillingness to cooperate with congressional investigators, who argue they have a constitutional right to examine the executive branch.

“We are here today because the times have found us,” said Pelosi, quoting one of the Founding Fathers, Thomas Paine, in remarks on the House floor. “While we do not place ourselves in the same category of greatness as our founders, we do recognize the urgency of the threat to our nation we face today.”

In fact, shortly before the House vote, a new clash erupted between the administration and Congress. Barr said he will ask Trump to assert executive privilege to shield documents on the administration’s decision to add a citizenship question to the 2020 Census if the House Oversight Committee moves ahead Wednesday on holding Barr in contempt.

The Justice Department letter revealing the threat came on the eve of an expected Oversight Committee vote to hold Barr and Commerce Secretary Wilbur Ross in contempt for failing to turn over documents lawmakers had subpoenaed and stopping a witness from testifying without a Justice Department lawyer.

Assistant Attorney General Stephen E. Boyd wrote that the decision to schedule the vote was “premature” and accused lawmakers of refusing to negotiate with the department to get at least some of what they wanted.

The vote and moves by the congressional committees have hardened the divide between the two parties.

House Republicans lambasted the House vote as a distraction from bigger issues facing the country, including the southern border crisis. Minority Whip Steve Scalise (R-La.) borrowed one of Trump’s favorite descriptions, calling the vote “presidential harassment.”

“When you go around the country, you don’t hear people saying they want to continue going down this rathole of witch hunts and impeachments,” he told reporters. “They’re on this witch hunt, this search to find something, as opposed to focusing on the problems of this country.”

Democrats have already gone to federal judges in Washington and New York to seek enforcement of subpoenas targeting Trump’s financial records in the possession of private companies. They have scored initial wins in trial courts, but appeals are likely to play out over the coming months — a sluggish timeline that has fueled the push for impeachment.

The vote stops short of a criminal contempt citation, a more serious sanction, and it comes a day after the Justice Department agreed to begin providing materials gathered by former special counsel Robert S. Mueller III during his nearly two-year probe of Russian interference in the 2016 election. Still, Democrats cast the vote as their most serious move yet in a campaign to hold Trump accountable for his actions to derail Mueller’s investigation.

“Who does this president think he is?” asked Rep. Maxine Waters (D-Calif.), chairwoman of the House Financial Services Committee. “He carries on like a dictator or a crime boss, publicly saying things like ‘We’re fighting all subpoenas’ and ‘I don’t want people testifying.’ In the United States of America, no one is above the law.”

House Rules Committee Chairman Jim McGovern (D-Mass.) said: “This is a dark time. This Congress is being tested — in this case, not by a foreign adversary but by our own president.” He added that Trump’s blanket policy of not complying with congressional subpoenas makes President Richard M. Nixon “look like an Eagle Scout.”

(…)

Barr’s agreement to make some of Mueller’s materials available has at least temporarily forestalled any enforcement action. The Justice Department’s understanding when it reached a deal with Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) was that while the committee would proceed with Tuesday’s resolution vote giving the committee authorization to sue, it would not actually file a suit if the Justice Department held up its end of the bargain, according to a U.S. official. The department never viewed the resolution as holding the attorney general in contempt, the official said.

Nadler confirmed in floor remarks Tuesday that enforcement of the Barr subpoena would be held “in abeyance for now.” But he said the House would take action to secure testimony from other former and current Trump officials.

“This unprecedented stonewalling by the administration is completely unacceptable,” he said.

The Judiciary panel could move swiftly to ask a judge to order testimony from McGahn, who was a key witness in Mueller’s investigation into whether Trump obstructed justice during the probe. The committee could also petition a federal judge to release protected grand-jury materials gathered in the probe, which underpin many of the key sections that Justice Department officials redacted from Mueller’s report.

In addition to authorizing the Judiciary Committee to proceed forward with its contempt citations against Barr and McGahn, the resolution, which I have embedded below, also contains language authorizing other House committees to proceed directly to enforcement if and when they hold other Administration officials in contempt for failing to testify or comply with document requests of subpoenas as part of the Trump Administration’s across the board stonewalling.

Most immediately, this would apply to the House Oversight Committee, which presently finds itself in a dispute with the Attorney General and Commerce Secretary Wilbur Ross over documents and testimony related to the placement of a question about citizenship appearing on the 2020 Census. Also eligible for this streamlined process would be the House Ways and Means Committee, which has been rebuffed by both a written request and a subpoena issued to Treasury Secretary Steve Mnuchin for copies of the President’s tax returns which Mnuchin has turned down despite explicit statutory authority for the committee to request those documents, Finally, there are already two enforcement actions already pending in Courts in Washington, D.C. and New York City seeking Trump-related documents from outside sources, The Trump Administration has already lost the initial round of litigation in both of those cases.

Unfortunately for those seeking a quick resolution of these matters, the move to court proceedings is not going to bring that about absent the unlikely development that the White House backs off its stonewalling strategy. If it doesn’t then Congress will be required to seek redress in the courts which, even if it is successful, the Administration can delay by filing appeals in the Circuit Court of Appeals and, ultimately, the Supreme Court. Even if the courts agree to handle these matters on an expedited basis, which they often do in these types of cases, it will still take months if not years for these matters to reach a final legal conclusion. To put things in perspective, the House Oversight Committee voted to hold former Attorney General Eric Holder in contempt over document requests in the Fast & Furious investigation in June 2012. That proceeding was still pending when Holder left office in 2014 and ultimately became irrelevant at the end of the Obama Administration. It is unlikely that the process will proceed any more rapidly in these cases.

At least on one level, this resolution is likely part of the House leadership’s effort to stave off the calls from some corners of the Democratic caucus for impeachment or at least the opening of an impeachment inquiry. So far, headcounts have put the number of Democrats who have joined in that call at roughly 60 out of the 232 Democrats in the House. The rest are either siding with the House leadership’s strategy or not expressing an opinion. Perhaps most importantly, the Democrats who won in historically Republican districts who will be most vulnerable in 2020, and who are essential to Democrats holding on to control of the House, have largely stayed silent As time goes on, though, the number of Democrats joining the call for at least opening calls for impeachment may increase as frustration grows over the seeming delays and the Democratic base grows restless.

Here’s the House resolution:

House Contempt Resolution by on Scribd

FILED UNDER: Congress, Donald Trump, Law and the Courts, Politicians, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. gVOR08 says:

    Whatever the Ds are doing seems to be working, or perhaps it’s really that what the Rs are doing isn’t working. Quinnapiac poll out last night shows Trump losing to Biden by 13 points, and losing bigly to every other Dem whose name they could remember.

    But before anyone gets cocky, remember what John Paul Jones didn’t say, they have not yet begun to smear. I’m starting to like Lawrence Tribe’s idea, start impeachment, but with no intention of referring to the senate.

    ReplyReply
  2. Mr. Prosser says:

    @gVOR08: I agree with the Tribe plan. A year and a half drip, drip, drip of criminal discoveries.

    ReplyReply

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