Even for Beltway hardball, this feels like the playoffs. After attempts at negotiations between the House Judiciary Committee and Attorney General William Barr either went nowhere or never really started, the Department of Justice escalated matters last night in a letter to Jerrold Nadler. Unless Nadler withdraws his planned vote on contempt for Barr, the DoJ threatened to ask Donald Trump invoke the broadest possible claim of executive privilege over the Mueller report, effectively blocking the committee for months in a legal tangle on every possible tangent:
The Justice Department told lawmakers that it would recommend President Trump assert executive privilege to the full Mueller report and supporting documents as the House Judiciary Committee planned to move ahead with plans to hold Attorney General William Barr in contempt of Congress, deepening a constitutional clash between the Trump administration and congressional Democrats.
In a letter sent Tuesday night to committee chairman Jerrold Nadler, D-N.Y., after negotiations between the committee lawyers and Justice Department over accessing redacted portions of the report, Assistant Attorney General Stephen Boyd called the panel’s continued demands for materials “unreasonable” and urged them to delay Wednesday’s scheduled vote to initiate the contempt process.
“If the committee decides to proceed in spite of this request, however, the Attorney General will advise the President to make a protective assertion of executive privilege,” Boyd wrote.
CNN noted the escalation this morning:
In just a few hours, the House Judiciary Committee will vote to hold Attorney General William Barr in contempt of Congress. But the Justice Department is pushing back.@FoxReports from Capitol Hill: https://t.co/VGMpL4Kh91 pic.twitter.com/N1fgVJCIO3
— CNN (@CNN) May 8, 2019
Nadler called the response “dangerous,” and insists that the vote on contempt will proceed this morning. Nadler accused Trump of trying to make himself into a monarch rather than an elected official, and said it’s the responsibility of Congress to bring him to heel:
House Judiciary Chairman @RepJerryNadler says “we have no choice” but to move forward with a vote today to hold Attorney General William Barr in contempt of Congress.
— CNN (@CNN) May 8, 2019
A king? We’ll get back to that in a moment, but Nadler immediately got the backing of his caucus leader:
JUST IN: House Speaker Pelosi says Attorney General Barr should be held in contempt of Congress for withholding full Mueller report from Congress pic.twitter.com/8YuAFEzWBJ
— Reuters (@Reuters) May 8, 2019
That’s all fine and good — in terms of emotional response and base-voter excitement. It signals that House Democrats will get enough votes to accept Nadler’s recommendation for contempt on Barr. That will no doubt be very politically satisfying for Democrats still steaming over Barr’s interpretation on obstruction.
And then … what, exactly? At that point, the White House will have the Mueller report and everything associated with it outside of Congress’ reach until the courts have a chance to sort all this out. In point of fact, Trump’s claim of executive privilege have less to do with royal ambitions than the fact that the executive is a separate and co-equal branch of government answerable to voters, and not operating at the pleasure of Congress. Executive privilege is a well-established legal framework that allows for some measure of confidentiality for presidents to work closely with aides. The conversations revealed by Mueller in the report fall clearly within those parameters, and it’s not clear whether Mueller agreed to keep privilege claims in place in exchange for frank discussions with Trump’s staff. Executive privilege claims don’t always succeed and carry some political baggage, but that doesn’t make executive privilege illegitimate.
The DoJ might be overplaying its hand here too, though. Federal courts might well side with Trump on a claim of privilege in his conversations with Don McGahn, but there’s a lot in Mueller’s Volume II that would be difficult to cover as privileged. Barr likely wouldn’t expect to win, but he might expect to outlast Nadler as House Judiciary chair by tying everything up in court for as long as possible. This threat looks like an attempt to attach some significant cost to the contempt charge, which otherwise would basically be a free shot for House Democrats but with little real bite. Just ask Eric Holder how a House contempt charge ruined his life.
After that, the next step might be impeachment against Barr for Democrats, but that’s a dead end too. The Senate has made clear that they’re not going to remove anyone from office on the basis of Nadler’s hysterics, whether that’s Barr or anyone else. Voters will wonder why Democrats want to impeach Barr after he published almost the full Mueller report and why we’re still talking about it at all. In the meantime, House investigations will grind to a halt on all fronts as the White House adopts maximum hostility towards the lower chamber and Democrats fail to accomplish anything else, too.
Nadler and Pelosi had better enjoy the easy W on contempt. It’s not going to be as cheap as it looks now.
Update: At least we know neither side was bluffing, for what it’s worth. While the Judiciary Committee agreed to hold a vote on contempt on a party-line vote, the White House asserted its privilege:
BREAKING: US Justice Dept. says President Trump "has asserted executive privilege over the entirety of the subpoenaed materials" of the Mueller report that have been requested by congressional cmte. https://t.co/kdrUxk2XiK pic.twitter.com/3ENgaSYhJm
— NBC News (@NBCNews) May 8, 2019
Update: Speaking of Eric Holder, ranking member Doug Collins reminds the Judiciary Committee that Congress waited well over a year in that case to move to contempt proceedings. Why not try negotiating in good faith first rather than lead off with threats?
Ranking member Rep. Doug Collins said Dems are moving to a contempt vote at "lightening speed," comparing the current situation to when the 2012 House Oversight Committee waited 10 times as long to hold former AG Eric Holder in contempt. pic.twitter.com/YbggmwQqbL
— POLITICO (@politico) May 8, 2019
Rep. James Sensenbrenner argued that the redactions are very necessary to stop “character assassination squads,” especially given Congress’ reputation as a sieve:
— CBS News (@CBSNews) May 8, 2019