Democrats showing contempt by holding William Barr in contempt

BY JONATHAN TURLEY, OPINION CONTRIBUTOR — 05/08/19 04:00 PM EDT

https://thehill.com/opinion/judiciary/442732-democrats-showing-contempt-by-holding-william-barr-in-contempt

The House Judiciary Committee is voting to hold Attorney General William Barr in contempt of Congress and to secure a vote of the entire House of Representatives in order to send the matter to federal court. The problem is that the contempt action against Barr is long on action and short on contempt. Indeed, with a superficial charge, the House could seriously undermine its credibility in the ongoing conflicts with the White House. Congress is right on a number of complaints against the White House, including possible cases of contempt, but this is not one of them.

As someone who has represented the House of Representatives, my concern is that this one violates a legal version of the Hippocratic oath to “first do no harm.” This could do great harm, not to Barr, but to the House. It is the weakest possible case to bring against the administration, and likely to be an example of a bad case making bad law for the House.

House Judiciary Chairman Jerrold Nadler (D-N.Y.) laid out the case for contempt. He raised three often repeated complaints against Barr in that he failed to release an unredacted report by special counsel Robert Mueller, allegedly lied twice to Congress, and refused to appear before the committee. Yet, notably, the only claim the committee seeks to put before a federal court is the redaction of the report. That seems rather curious since, if Barr lied or refused a subpoena as House leaders claim, it normally would be an easy case of contempt. The reason for this move is that House Democrats know both claims would not withstand even a cursory judicial review.

False statements

Democrats have struggled to focus attention on the summary Barr wrote rather than on the actual report. While Democrats claim the summary misrepresented the report, the report tracks the conclusions referenced in the letter Barr sent. Barr said Mueller did not find evidence of a crime linked to collusion or conspiracy with the Russians. That is true. He said Mueller did not reach a conclusion on obstruction. That is also true.

Barr said he and Deputy Attorney General Rod Rosenstein concluded the evidence, particularly on the lack of a clear showing of corrupt intent here, did not support an obstruction charge. That is again true. Barr then added the most damaging line of the report, stating Mueller expressly did not exonerate Trump. Barr also gave Mueller an opportunity to review his letter, but Mueller chose to decline. However, his letter was not false.

Democrats also have cited the exchange between Barr and Congressman Charlie Crist (D-Fla.) over a story about some “concerns” the letter raised among the members of the special counsel team. House Speaker Nancy Pelosi (D-Cailf.) declared what Barr said was a “lie” and a “crime.” One would assume that Barr would then be referred for prosecution and subject to an immediate impeachment. At a minimum, it would seem such an allegation would be in the contempt sanction. The problem is that what Barr said was true.

Crist noted unspecified news reports that members of the special counsel team are “frustrated at some level with the limited information” in the letter Barr sent and “that it does not adequately or accurately, necessarily, portray” the findings. Crist asked if Barr knew what they were referencing. Barr said no and said, “I suspect that they probably wanted more put out.” He added, “But in my view, I was not interested in putting out summaries or trying to summarize because I think any summary, regardless of who prepares it, not only runs the risk of, you know, being underinclusive or overinclusive, but also, you know, would trigger a lot of discussion and analysis that really should await everything coming out all at once.”

Barr was being questioned about news reports citing unnamed members of the special counsel team and their being “frustrated” by the portrayal of the “findings.” He said he did not know but added that he assumed they “wanted more put out” and he rejected the idea of releasing additional summaries. That is true. The only thing Barr did not mention was the letter that Mueller sent to him, which had not been public at that point.

Failure to appear

Various Democrats have declared that Barr refusing to appear before the committee is clear contempt of Congress. It is a point endlessly raised by House members on television but conspicuously missing in the contempt sanction. The reason is that it is not true. Barr appeared before the Senate and answered detailed questions from members. He was prepared to do the same in the House when the committee inexplicably demanded that he be questioned not just by members but also by professional staffers.

Democrats have tried to explain that the demand for questioning was due to the “complexity” of the record and issues of the special counsel report. That rationale is facially absurd. There is nothing overly complex about these issues, as shown in the Senate hearing. The committee wanted Barr examined by staff lawyers, including Norm Eisen, who handled ethics questions for President Obama. Eisen had declared months ago that the criminal case for collusion was devastating and that Trump was “colluding in plain sight,” a position expressly rejected by Mueller. The Democrats wanted to manufacture a conflict, and they have succeeded in doing so.

Report redactions

That leaves us with the only ground cited by the Democrats for contempt, which is Barr refusing to release the unredacted report. Senate Democrats attacked him at his confirmation hearing for refusing to guarantee public release of the report without redactions. As a witness, I testified that they were asking Barr to commit to a potential criminal act to secure his own confirmation. The report inevitably would contain some grand jury material, which under the law is information that cannot be publicly released without a court order. It is a crime to unveil such information.

Barr promised to release as much of the report as possible, and he has delivered. Indeed, he is not expressly given the authority to release the confidential report. Yet, he not only released it but declared executive privilege waived on its content. The key obstruction portion of the report is virtually unredacted. Just 8 percent of the public report was redacted, largely to remove material that could undermine ongoing investigations. The sealed version of the report given to Congress only had 2 percent redacted. Democrats are therefore seeking a contempt sanction on a report that is 98 percent disclosed and only lacks grand jury material.

Barr restricted access to the 98 percent disclosed report, as opposed to the 92 percent public report, due to the inclusion of evidence impacting ongoing prosecutions. He has offered to expand the number of members and staff to review that material but insists on it remaining protected. But this has nothing to do with the redactions. It is the 2 percent solution to a major political dilemma of the left. Faced with a report that rejected the collusion theories of their running narrative, Democrats want to focus on those 2 percent of redactions rather than over 400 pages of findings.

So Congress now will ask a court to find civil contempt for Barr refusing to release grand jury information. The District of Columbia Circuit Court of Appeals recently rejected a district court claim to have the “inherent supervisory authority” to disclose grand jury matters because of great public interest. To make matters worse, the Justice Department has now said the president has invoked executive privilege over the entire report, making this contempt claim even less likely to prevail over the long run.

Democrats are launching the weakest possible contempt claim against the administration in a civil action with a long track through the courts. In the end, there is utter contempt in this action, but not in the case of Barr.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and represented the House of Representatives in its successful challenge to executive actions under the Affordable Care Act.