Maybe not, but it’s best never to underestimate the creativity people put into futility. Law professor and CBS News legal consultant Jonathan Turley concludes in a column at The Hill that Donald Trump’s opponents are ordering Code Reds on Attorney General William Barr because they can’t handle the truth. After noting the arguments for contempt that Jerrold Nadler et al somehow overlooked in its zeal to scapegoat Barr, Turley — not exactly a conservative Trump apologist — calls the grounds cited “the weakest possible contempt claim”:
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.
What about the rest of the redactions? Barr has provided a less-redacted version of the Mueller report to be viewed in camera by congressional leadership — the Gang of Eight plus the chairs and ranking members of the intelligence committees. Of the six Democrats included in that group, how many have bothered to look at it? Jack Crowe answered that question yesterday:
As of this writing, not one of the six Democrats granted access to what amounts to 99.9 percent of volume II of the Mueller report, which details the president’s behavior as it relates to obstruction of justice, have taken the opportunity to examine it. If they had, they could have viewed the entirety of Mueller’s obstruction case against Trump except for the following seven redactions, two of which are applied to footnotes.
In response to Barr’s offer, Congressional Democrats have said that the full report should be made available to all lawmakers and have argued that outcome will become less likely if top congressmen view the less-redacted version.
“Every member of Congress ought to be able to see that version,” Mark Warner, ranking Democrat on the Senate Intelligence Committee, told our own John McCormack. “I think if I were to go, you’d lessen the case.”
As weak as their contempt charge is, though, it’s a high-water mark for House Democrats. The New York Times points out that futility makes for a pretty effective soapbox, but that’s about it:
But unless the courts move to enforce the contempt resolution, it will have no teeth, and court action takes time. When Barack Obama was president, House Republicans held Attorney General Eric H. Holder Jr. in contempt of Congress for his failure to provide documents and information related to the so-called Fast and Furious gun trafficking program. But it had little immediate effect.
When George W. Bush was president, the House voted to hold his chief of staff, Joshua B. Bolten, and the White House counsel, Harriet E. Miers, in contempt for refusing to cooperate with an investigation into the mass firings of federal prosecutors. Ms. Miers eventually agreed to testify — but by that time, Mr. Obama was president.
Andrew McCarthy doesn’t think House Democrats will want to take this to court either — or will wind up with egg on their faces if they do:
The first thing a judge would point out is that what Congress is demanding that Barr do is illegal – namely, disclose grand jury material to Congress. In Wednesday’s circus of a hearing, Chairman Nadler pointed out that there was a time when federal prosecutors would have joined with Congress to seek a court order permitting disclosure. Yes … but what Nadler conveniently neglected to mention was that this was before last month, when the D.C. Circuit federal appeals court – whose jurisprudence controls the dispute between Congress and the attorney general – decided McKeever v. Barr.
That case holds that a court has no authority to order disclosure unless it is pursuant to an exception to grand-jury secrecy explicitly spelled out in Rule 6(e) of the Federal Rules of Criminal Procedure (which governs grand jury matters). In the old days that Nadler was talking about, there was a theory in the law that a court has residual “supervisory” powers over the grand jury that empowered judges to order disclosure outside Rule 6(e). McKeever rejects that theory.
District judges in Washington are bound to follow McKeever. So a court could not order disclosure. Then there is the other embarrassing point a judge would make. Rule 6(e) is Congress’ own law. Meaning Congress has the power to amend it. Any judge would, therefore, have to ask House Democrats, “While you were doing all this ranting and raving and holding the attorney general in contempt, have any of you fine lawmakers proposed a two-line amendment to Rule 6(e) that would authorize disclosure to Congress in special counsel investigations?”
It might be fun to see how that plays, assuming House Democrats have the nerve to try enforcing their contempt writ in the courts. McCarthy might be too optimistic in thinking that a district court judge would slap down such an argument, but the appellate court certainly would. By that time, this will have long dissipated, reduced to yet another narcissistic Beltway flame war between partisans that has little or nothing to do with actual governance. Weak hardly gives justice to the idiocy of this enterprise.