This is the guy who was eating KFC at Thursday’s committee hearing to mock Barr’s decision not to appear, in case you’re wondering how seriously he’s taking this.
My gut says the odds of Jerry Nadler sending officers to arrest the Attorney General for refusing to testify are absolute zero, but we must bear in mind that we live in a simulation now in which American politics has become a hallucinatory reality-show carnival. And let’s face it, Congress throwing the AG into a dungeon would be a pretty sweet episode of reality television.
Cohen refers in the clip to the House’s inherent power of contempt. Normally when someone is held in contempt of Congress the matter is referred to the Justice Department for prosecution, but that poses a problem when the person cited for contempt happens to lead the Justice Department. The last time it happened, the Obama administration tore up Congress’s referral and declined to prosecute Eric Holder, claiming that the documents the House was demanding from him were protected by executive privilege. I don’t know what grounds the Trump White House would use to decline to prosecute Barr but they’d find somethin’. If all else failed, Trump could simply pardon Barr. So what can Congress do when the DOJ isn’t willing to enforce its contempt citations?
Well, it can handle the matter itself. It hasn’t happened in many, many years but if you’re held in contempt Congress has the authority to send its “police” to your door, haul you in to testify, and toss you in the D.C. jail if you refuse. This short but nifty WaPo article from 2007 runs down the modern history of “inherent contempt.” Courts have sided repeatedly with the legislature’s power to do this. And so long as Congress is acting on its own, in a matter involving civil rather than criminal contempt, the president *doesn’t* have the power to pardon.
The limitation on the president’s pardon power was most comprehensively discussed in a 1925 opinion by Chief Justice (and former president) William Howard Taft in the case of Ex Parte Grossman.
Grossman had been accused during Prohibition of the illegal sale of liquor and was enjoined by a federal court from further sale of alcoholic beverages. When he violated the order, he was accused of contempt and sentenced to prison — and then pardoned by the president…
In an analysis of the pardon power that [Chief Justice] Taft traced back through English parliamentary history, the opinion concluded that the power did reach contempts — but only criminal contempts, the purpose of which is to vindicate offenses against the dignity of public authority.
Civil contempt, in which someone is held temporarily to force them to comply with a legal proceeding, isn’t an “offense against the United States” and so the president’s authority doesn’t reach it. Nine years after the Grossman case, in an opinion by Louis Brandeis, the Supreme Court upheld the Senate’s power to take someone into custody pursuant to a contempt charge and denied the prisoner’s writ of habeas corpus.
So, yeah, they could arrest Barr.
But they’re not going to. Barr’s testimony isn’t worth so much to Nadler that it’d be worth reviving a weird draconian practice that would make the poisoned relationship between the two parties that much more poisonous. (McConnell would come under immediate pressure from the right to call some liberal to testify and then lock him up if he refused. Tit for tat!) Especially not when the public already got to hear from Barr last week at length in the Senate. If an outlet as friendly to Democrats on Russiagate as CNN is as incredulous as Anderson Cooper is here, you can imagine how the rest of the public would receive an attempt to arrest Barr. Remember, Pelosi’s whole strategy towards Trump ahead of 2020 is not to take any drastic action that might inflame Republicans and make swing voters more favorable to him. She came out against impeachment even before Mueller issued his verdict on collusion knowing how risky politically trying to remove Trump might be. She’s not now going to turn around and pull the pin on a political grenade by having Bill Barr arrested.
This is a good niche for Cohen, though. There’s no downside to playing the “progressive firebrand” role on TV knowing that the hardball tactics you recommend won’t be implemented and therefore can’t possibly backfire on you. Righty populists have dined out on that dynamic for years too. All Cohen’s really doing here is fundraising for his next campaign.