House Judiciary Committee Democrats Hold Attorney General Barr in Contempt

The House Judiciary Committee Democrats voted on Wednesday to hold Attorney General William Barr in contempt, setting up potential action on the House floor in the near future.

The contempt resolution, authored by Judiciary Committee Chairman Jerrold Nadler (D-NY), takes issue with Attorney General William Barr’s failure to comply with a congressional subpoena requesting Special Counsel Robert Mueller’s full, unredacted report. It was advanced on a party-line vote of 24-16 in which Democrats voted in favor and Republicans in opposition after a more than five hour hearing.

The Dept. of Justice (DOJ) on Tuesday asked the committee to cancel its vote on the contempt resolution and suspend enforcement of the subpoena in exchange for allowing lawmakers access to a version of the report with only grand jury information redacted and letting them take notes in the secure viewing room. When the Judiciary Committee forged ahead with the contempt markup hearing, the Trump administration exercised executive privilege over the subpoenaed materials on Wednesday morning.

What is contempt of Congress?

Contempt is used by the House and Senate to respond to actions viewed as obstructing the legislative and oversight process by forcing compliance, punishing the subject of contempt (aka the contemnor), or removing the obstruction. Congressional contempt power can be exercised in three ways according to the Congressional Research Service:

• Inherent Contempt: This method draws on Congress’s constitutional authority to try and detain the contemnor until the individual complies with congressional demands. It is also functionally dormant, as it was last used in 1935.
• Criminal Contempt: This allows Congress to punish subpoena non-compliance with a by certifying a contempt citation for the criminal prosecution of the contemnor with the DOJ, rather than serving as a mechanism for obtaining the subpoenaed material.
• Civil Enforcement: Congress has the power to seek a civil judgment in federal court declaring that the contemnor is legally obligated to comply with the congressional subpoena.

There are several obstacles to congressional subpoena enforcement against executive branch officials through the use of criminal contempt or civil enforcement. In terms of criminal contempt, based on past practice the DOJ doesn’t prosecute contempt if executive privilege is invoked. That was the case for several contempt citations involving executive branch officials approved by the House and sent to the DOJ in recent decades:

• EPA Administrator Anne Gorsuch Burford (1982): Gorsuch was subpoenaed for documents related to the functioning of the Superfund program, which cleans and repairs environmental areas contaminated by toxic waste, during the Reagan administration.
• Former WH Counsel Harriet Miers & WH Chief of Staff Joshua Bolten (2008): Miers was subpoenaed for documents and testimony related to the George W. Bush White House’s involvement in requesting the resignations of U.S. attorneys, while Bolten was subpoenaed for similar records.
• Attorney General Eric Holder (2012): Holder was subpoenaed for records related to the Obama administration’s Operation Fast & Furious, under which the ATF allowed semi-automatic “assault” rifles to be sold to straw-buyers who transferred them to drug cartels. The weapons were used in numerous murders near the U.S.-Mexico border, including the 2010 killing of U.S. Border Patrol Agent Brian Terry.

Additionally, while it’s possible to enforce a congressional subpoena through civil action it can take significant time to obtain a final, enforceable ruling due to the appeals process.

What’s next for Barr's contempt resolution?

The contempt resolution, which was amended to drop the demand for an unredacted version of the Mueller report to accommodate legally required redactions of grand jury material, may be brought up for a vote on the House floor in the near future.

When asked by reporters when the contempt resolution could reach the floor, House Majority Leader Steny Hoyer (D-MD) said, “We haven’t decided that.” Whether it does could depend on whether negotiations with the Trump administration about waiving its use of executive privilege for redacted portions of the Mueller report bear fruit.

— Eric Revell

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