Lawmakers Dispute Precedent for Holding Barr in Contempt

Lawmakers Dispute Precedent for Holding Barr in Contempt
AP Photo/Mary Altaffer
Lawmakers Dispute Precedent for Holding Barr in Contempt
AP Photo/Mary Altaffer
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Attorney General Bill Barr’s decision not to testify before the House Judiciary Committee has further inflamed the partisan tensions over the Special Counsel Robert Mueller’s Russia probe, triggering an outpouring of new political invective, threats and legal arguments.

Whether all the sound and fury will produce anything more than additional political posturing remains to be seen.

Democrats cite ample precedent for their actions – in particular, their intention to have committee staff attorneys question Barr, which prompted his refusal to testify -- and the right to pursue aggressive oversight of the executive branch the way they see fit. They say Mueller’s two-year investigation and its final report provided a path of evidence for them to follow. Though the report did not recommend criminal prosecution, it pointedly didn’t exonerate the president, Democrats point out.

Republicans assail the House majority’s investigations as unprecedented political sour grapes designed to keep the Trump-Russian collusion narrative alive during the 2020 presidential election despite a lack of evidence after Mueller’s exhaustive probe.

The precedent question is playing a crucial role in determining just how fair it is for Democrats’ to threaten to hold Barr in contempt of Congress for refusing to testify before the House Judiciary Committee Thursday after his grilling on the Senate side one day before. Rep. Jerry Nadler, the chairman of the House panel, gave Barr 48 hours to agree to testify and also produce an unredacted version of the Mueller report.

Democrats argued that Barr was afraid to appear before the panel, a point Tennessee Rep. Steve Cohen tried to drive home by scarfing down a bucket of Kentucky Fried Chicken in the committee hearing room.

Republicans countered that Barr had agreed to testify until Nadler changed the rules and upped the stakes by requiring that he submit to committee staff questioning.

Rep. Doug Collins, the panel’s ranking Republican, called the insistence on staff questioning an unprecedented and obvious attempt to try to ensnare the attorney general in a legal gotcha that could be blown up by Democrats as a “lie” to Congress.  

After all, Senate Democrats spent Wednesday excoriating Barr for failing to disclose or even acknowledge receiving a March 27 letter from Mueller taking issue with the way Barr had first characterized his findings without including the underlying evidence Mueller used to reach his conclusions.

Speaker Nancy Pelosi on Thursday used Barr’s Senate testimony to accuse him of “not telling the truth to the Congress of the United States” about the letter, which she said is a “crime.”

The Justice Department immediately pushed back, calling Pelosi’s allegation “reckless, irresponsible and false.”

If the House holds Barr in contempt, it will be only the second time in history it has done so to a sitting attorney general. In 2012 the GOP-controlled House held Attorney General Eric Holder in contempt for refusing to turn over documents linked to the botched Fast and Furious gun-running sting.

A House resolution cited then-Attorney General Janet Reno for contempt in 1998 for not turning over internal memos related to a campaign finance controversy in the middle of Bill Clinton’s impeachment, but the full chamber never voted on the resolution.

In Holder’s case, 17 Democrats joined every House Republican in backing the contempt measure while Pelosi walked off the chamber floor in protest. Even though the citation served as a harsh public rebuke of Holder, it had very little impact on his attorney general role.

Theoretically, a contempt conviction could carry a fine of up to $10,000 and punishment of a year in prison. In reality, however, it’s unlikely to ever be taken up in court. Once a contempt citation wins House or Senate approval, it’s handed over to the U.S. attorney for the District of Columbia. U.S. attorneys serve at the pleasure of the attorney general, in this case Barr, and it’s up to Barr to decide whether to prosecute himself.

But the precedent involved in the reasons Barr cited for refusing to testify is far more complicated.

Last weekend, he had agreed to appear before the panel for a Thursday grilling -- until Nadler said he wanted staff members, in addition to lawmakers, to question him. Nadler’s office cited numerous examples in which committee staff were allowed to question administration officials and other witnesses. But on the far narrower question of House Judiciary Committee staffers questioning a sitting attorney general, there is no precedent, according to a CNN fact check.

Nadler, however, argued this week that “committee staff questioning has long been an important, if under-utilized, aspect of congressional oversight that is in complete accordance with House rules and past precedent.” The New York Democrat noted that committee staff participated in questioning witnesses during the impeachment of Presidents Nixon and Clinton.

But Barr’s testimony is not part of impeachment inquiries, so those examples fail to establish adequate precedent, CNN found.

During the last Congress, Nadler said committee lawyers questioned several FBI and Justice Department officials, including FBI Deputy Director Andrew McCabe and AG Loretta Lynch. CNN, however, pointed out that many of those interviews were with former FBI officials and that Lynch had left office at the time. Also, the interview with McCabe was not a public hearing, unlike the one Barr had originally agreed to appear before.

“Some have expressed concern that it’s somehow inappropriate for committee staff to question a sitting attorney general,” Nadler acknowledged earlier this week, before asserting that “there is ample House precedent for committee staff to question sitting Cabinet and Senate confirmed officials during a hearing.”

Nadler said the “most salient precedent” occurred during the 1987 House and Senate hearings on the Iran-Contra scandal when staff questioned then-Attorney General Ed Meese as well as Secretary of Defense Casper Weinberger and Secretary of State George Shultz.

However, after the questioning of former National Security Adviser John Poindexter, Republicans had a “mutual motivation” to stop the hearings as soon as possible, the Washington Post reported at the time. Even before they were halted, the Post noted, the panels had agreed to curtail the role of their counsels in questioning the final four Cabinet-level witnesses, including Meese, Shultz and Weinberger.

There was an agreement, the Post continued, that “if members of the Cabinet were going to be confronted, it should be done by senators and congressman, not the staff.”

Even if precedent doesn’t apply, Nadler nonetheless maintained he is on firm legal ground in allowing the staff questioning. “Congress does not need to justify to the AG, the Justice Department or any other part of the executive branch the manner in which it chooses to conduct its own proceedings,” he said. “Any attempt by the executive to dictate this is an obstruction of Congress.”

On Thursday morning, he ratcheted up his rhetoric, accusing Barr of trying to “blackmail” the panel by refusing to submit to staff inquiries.

Collins pushed back, arguing that Democrats didn’t really want Barr to testify and were intentionally trying to get him to refuse by adding the “poison pill” of staff questioning. He said there are several Democrats on the panel who are lawyers and who have repeatedly demonstrated their ability to sharply questions witnesses.

“This was our chance to talk about the Mueller report instead of putting poison pills in there,” Collins said.

“What we have here is simply another opportunity to side-track, and to have a serial side show of stepping on our own” hearing and opportunity to have Barr testify, he concluded.

Susan Crabtree is RealClearPolitics' White House/national political correspondent.

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