Rule of Law

Fight between Barr, House Democrats exemplify balance of power battle

President Donald Trump’s hostility toward congressional oversight power blossomed while lawmakers were on their spring recess, his first week out from the shadow of any possible criminal charges stemming from a 22-month special counsel investigation into his actions.

A Justice Department official was told to defy a congressional subpoena for a deposition on the 2020 census. A former White House security official ditched scheduled testimony before a committee, as did White House senior aide Stephen Miller. The administration declined a request for Trump’s tax returns, as well as a subpoena for an unredacted version of special counsel Robert S. Mueller III’s report.

“We’re fighting all the subpoenas,” Trump told reporters last week, when asked about plans to contest a congressional subpoena for former White House counsel Don McGahn to testify about the Mueller probe. “The Democrats are trying to win 2020.”

And in the clearest sign of how Trump views this invigorated clash between the executive and legislative branches, he filed a lawsuit to stop a congressional request for some of his financial records. He characterized subpoenas as the “weapon of choice” for House Democrats as they wage an “all-out political war.”

House Democrats will have to decide how to navigate their oversight investigations against two strong new political currents: A Mueller report rife with evidence Trump tried to obstruct the investigation — but without recommending a criminal charge against the president — and the growing list of the administration’s high-profile snubs of congressional power.

“For the very first time, we’re starting to see these institutions start to fight in a very public way, in a very legal way,” said Joshua Huder, a senior fellow at Georgetown University’s Government Affairs Institute.

House Democrats held a conference call on their strategy during the two-week recess. Now back in Washington, against the backdrop of two days of testimony from Attorney General William Barr, the lawmakers will face their own questions about what tools can be used to battle back — up to and including impeachment of Barr or Trump.

Taking action

Over the recess, House Oversight and Reform Chairman Elijah E. Cummings, a Maryland Democrat, announced plans for a vote to hold former White House adviser Carl Kline in contempt of Congress for refusing to testify about the Trump administration’s White House security clearance process.

That contempt vote was put on hold Sunday after Kline and the committee agreed to an interview Wednesday with his personal lawyer and White House counsel. It would have been the first move from House Democrats to use one of two formal mechanisms to enforce subpoenas since they took control of the House.

The other move — going to the federal courts to enforce a subpoena — could be near as Barr is expected to miss a May 1 deadline in a House Judiciary Committee subpoena to turn over an unredacted version of the Mueller report.

But contempt of Congress is not certain to get lawmakers the information they seek, and filing a lawsuit could take months to get resolved. Trump beat House Democrats out of the gate when it comes to a court fight, and it could set the stage for other battles. In the lawsuit against both Cummings and Mazars USA, the president’s longtime accountants, Trump seeks to stop the firm from complying with a subpoena for eight years of his records.

The lawsuit contends that the request “lacks a legitimate legislative purpose,” and accuses the Oversight Committee of acting like prosecutors looking into illegal activity of an individual before he was even in government.

Legal experts say this narrow request for one person’s documents could be a closer call than some others, but courts give wide latitude to Congress when it comes to what is a legitimate legislative purpose.

“Congress has issued subpoenas to accounting firms for decades, which means the House subpoena to the Mazars accounting firm falls smack in the mainstream of congressional oversight efforts,” said Elise Bean, a former chief counsel for the Senate Permanent Subcommittee on Investigations.

Bean cited subpoenas of accountants associated with Enron, tax shelters, the financial crisis and corporate tax dodgers.

“Allowing third parties to stop banks, accountants or others from responding to legitimate congressional subpoenas would not only cripple congressional oversight, but also enable a lot of wrongdoers to evade investigation,” she said.

The court fight over Mazars could at least delay the subpoena for months — and that might be the point as the president ramps up his re-election campaign.

If Congress starts filing lawsuits to enforce its subpoenas, those fights could also take months and find their way to the Supreme Court.

The administration’s broad resistance to essentially all oversight could give Congress a faster path through court, said Brianne Gorod, chief counsel at the Constitutional Accountability Center.

“I think that the fact that we’re operating against the backdrop of unprecedented level of obstruction may make the courts more willing to act quickly in responding to congressional request to enforce subpoenas,” Gorod said.

Barr to the Hill

Barr will personify the subpoena battle when he testifies about the Mueller report before the Senate Judiciary Committee on Wednesday and the House Judiciary Committee on Thursday.

But Barr’s appearance before the House panel could be in doubt as Democrats move forward with plans to allow an extra hour of time — divided into equal 30-minute, unbroken segments for each party — for either lawmakers or committee staff to ask questions.

The committee planned a Wednesday vote on allowing that hour, while Justice Department spokeswoman Kerri Kupec pointed out that Barr agreed to appear before Congress.

“Therefore, members of Congress should be the ones doing the questioning,” Kupec said. “He remains happy to engage with members on their questions regarding the Mueller report.”

House Judiciary Chairman Jerrold Nadler said Monday he hoped Barr would show up for the hearing but said there would be a hearing regardless. The New York Democrat said he’s not willing to compromise on allowing staff attorneys to question Barr, except perhaps for the allotted time of questioning.

Barr struck a gruff and defiant tone when answering questions from lawmakers and journalists about his handling of the Mueller probe, and has been firm in his decision to control how much of the report Congress sees.

Democrats will focus on why Barr concluded that, after reviewing the catalog of Trump’s actions listed in the special counsel report, none of them establish that the president committed an obstruction of justice crime.

Sen. Kamala Harris of California, one of three Democratic presidential candidates on the Judiciary Committee, said Barr “acted more like the president’s defense attorney than our nation’s attorney general.” Senate Judiciary Chairman Lindsey Graham of South Carolina and other Republicans have been disinterested in exploring more about Mueller’s investigation. “Time to move on,” Graham tweeted.

Sen. Charles E. Grassley of Iowa is among those likely to focus more on what wasn’t in the Mueller report and criticisms about the origins of the probe, concerns that Trump repeatedly stresses.

“Were our premiere law enforcement and intelligence agencies co-opted by candidate Trump’s political opponents in an attempt to take him down? Did political bias or unverified claims taint decisions by senior agency officials?” Grassley asked in a statement. “These are issues that all Americans, especially those running for president, should want examined.”

But access to the full Mueller report, along with all documents and investigative materials created by the special counsel’s office, will remain a major point of contention as well.

The Justice Department offered a reading room at DOJ headquarters for some lawmakers to review a less redacted version of the report. Democrats rejected that proposal and Nadler instead issued a subpoena and said he would address those concerns when Barr testifies.

A subpoena for McGahn’s testimony related to the Mueller investigation increases the potential for another hurdle, raising different legal issues, if Trump claims executive privilege. Courts have previously ruled that executive privilege could be a question-by-question issue, but would rather not weigh in at all.

Other options

Criminal contempt of Congress, which has been used four times since 2008, is not really a credible threat.

While an 1857 law makes it a misdemeanor to “willfully” fail to comply with a subpoena and appears to require a U.S. attorney to submit a violation to a grand jury, the executive branch is unlikely to charge.

There’s more Congress could do, including taking the unusual step of passing a resolution and then ordering the sergeant-at-arms to arrest intransigent witnesses, Huder said. Lawmakers could order the witnesses detained, or fine them, he said.

Democrats are raising the possibility. Rep. David Cicilline of Rhode Island, a member of the Judiciary Committee, told MSNBC that it happened in 1935 and should happen again if Trump tries to stonewall Congress.

“Congress has the responsibility, and I would say the obligation, to hold individuals in contempt who do not comply with a lawful subpoena,” Cicilline said.

But all of this is contingent on people in Trump’s administration following his orders to not comply with legal orders, and the president’s sway to have them do so. There are examples, even in the Mueller report, of his deputies not following orders that could violate the law.

“He just gets rolled all over the place by the people who are under him,” Huder said. “So, I don’t know this is real yet.”