(Bloomberg) -- Attorney General William Barr’s snub of a House hearing on Robert Mueller’s Russia report exposed that Democrats are in an awkward position: They don’t have any good options for forcing the Trump administration to cooperate with their multiple investigations.
Democrats seeking to compel -- or punish -- Barr and others who ignore Democratic invitations and subpoenas could pursue contempt proceedings, which carry no tangible penalty when branches of government face off, or take action in court, which would be protracted.
House Speaker Nancy Pelosi and Democratic leaders are resisting the other obvious option -- moving to impeach the president -- even as Republicans goad them on.
Barr didn’t show up as scheduled Thursday to testify before the House Judiciary Committee, complaining about the format for questioning. That came as Barr and the Justice Department defied a committee subpoena to turn over the full, unredacted version of Special Counsel Mueller’s report on Russian interference in the 2016 presidential election and the evidence behind it.
“This is a great danger to American democracy,” Judiciary Chairman Jerrold Nadler said. "We are going to use what process we have in the courts and elsewhere to get the answers and the information we need."
On Friday, Nadler made a new offer to Barr aimed at breaking the deadlock over Democratic demands to see the unredacted Mueller report. His new plan is for lawmakers and certain staffers to be able to see the redacted portions of the report that don’t include grand jury material.
“If the department persists in its baseless refusal to comply with a validly issued subpoena, the committee will move to contempt proceedings and seek further legal recourse,” Nadler wrote in a letter to Barr, setting a deadline of Monday at 9 a.m. in Washington for a response.
Representative Doug Collins, the Judiciary panel’s top Republican, suggested that Nadler and Democrats are trying to look like they are carrying out a process akin to impeachment-- such as with their demand that committee lawyers as well as members question Barr -- without actually taking that politically risky route.
“The procedural and legal perks of impeachment do not apply, and the chairman can’t have it both ways,” Collins said in a statement. “He can’t try to pacify his liberal base by pretending to do impeachment without actually taking the plunge. The reality of our chamber and this distinguished committee is that when it comes to impeachment, you’re either in, Mr. Chairman, or you’re out, and, right now, you’re out.”
Democrats said they’re continuing to explore all options to force President Donald Trump and his administration to turn over documents and other material needed to perform their oversight responsibilities.
Trump made clear last week that his administration will defy congressional subpoenas and other demands, including for his personal finances and the handling of White House security clearances. “We’re fighting all the subpoenas,” he declared.
In Nadler’s quest for a fuller version of the Mueller report, one option to hold an executive branch official in contempt for non-compliance is through a criminal contempt statute -- essentially a criminal referral to a U.S. attorney. But that would be “probably fruitless,” said Tom Campbell, a former Republican House member who’s a law professor at Chapman University in California.
“Federal courts may rule on subpoena requests from congressional committees, including resolving issues of executive privilege and attorney-client privilege,” Campbell said. “However, if the president disobeys an order to provide information subpoenaed by a congressional committee, the Congress lacks any enforcement power -- except to consider the president’s refusal to supply that information as grounds for impeachment.”
Even if the House were to find Barr in contempt, it would be up to a U.S. attorney and the Justice Department -- led by Barr -- to prosecute. And the department isn’t likely to act when the official’s non-compliance is at the direction of the president. Federal prosecutors have broad discretion over whether to bring charges.
Years in Court
The House could go to court to seek evidence via civil action. But congressional researchers have documented how such inter-branch showdowns, such as with the Justice Department’s botched "Operation Fast and Furious" gun-running sting operation, have taken years in the courts to reach even a partial resolution.
Nadler hasn’t ruled out that Democrats could go so far as to assert Congress’s long-dormant "inherent contempt" powers.
Under this approach, the House could dispatch its sergeant-at-arms to make arrests of officials -- even holding them on the Capitol grounds -- and then conduct a trial before the full House. Someone judged to be in contempt could be fined or jailed until the testimony or documents sought have been provided.
But the likelihood of putting Barr or another official in a Capitol “jail” is slim.
The tactic, used early in Congress’s history, hasn’t been embraced since the mid-1930s. A recent federal district court decision notes with understatement: “Exercise of Congress’s inherent contempt power through arrest and confinement of a senior executive official would provoke an unseemly constitutional confrontation that should be avoided.”
That leaves impeachment. It would give the House Judiciary Committee even broader investigatory subpoena and other powers than it now claims in conducting oversight -- but it’s not a popular option according to opinion polls. And indictment by the House ultimately would prove futile so long as the Republican-led Senate isn’t inclined to convict the president or officials like Barr.
So Pelosi reiterated Thursday that she doesn’t believe it’s time to consider impeachment, even as she accused Barr of lying to Congress and said that Trump’s vow to defy subpoenas is “obstruction of justice.”
(Updated with new Nadler offer starting in sixth paragraph.)
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