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