To quote Lando Calrissian: This deal is getting worse all the time. Yesterday, Jerrold Nadler announced that he would put off contempt charges against William Barr after reaching a deal with the Department of Justice. Democrats questioned his judgment at the time, wondering why the House Judiciary chair wanted to take his foot off the gas pedal just as House Democrats had a chance to punish the Trump administration.
Today, the Daily Beast reports that Nadler’s deal leaves any claims of executive privilege in place — and that it’s very similar to what the DoJ offered in the first place:
A source familiar with the situation cautioned that the White House will likely have access to any evidence that could implicate its equities and executive privilege, and may try to step in and block members of Congress from seeing material it deems privileged. …
That official also told The Daily Beast that the outlines of the deal Nadler announced today are very similar to those outlined in a May 7 proposal the DOJ made to the chairman. That proposal wasn’t accepted, and House Judiciary members voted on May 8 to take the first step toward holding Attorney General Bill Barr in contempt of Congress.
The May 7 proposal, per the DOJ source, would have let committee members and staff view a minimally redacted version of Mueller’s report, with the promise that there would be another negotiating session after they read it regarding its underlying evidence—in other words, ‘Read the report, then we’ll talk.’ Viewing the underlying evidence wasn’t off the table, but it wasn’t exactly on the table, either. That offer didn’t fly. The new agreement gives Nadler, all 41 committee members, and multiple staffers access to some of the report’s tightly held underlying evidence.
Some of the underlying evidence, and perhaps not much of it. Betsy Woodruff later confirmed that the White House will act as gatekeepers:
Nadler may get less than expected. That’s because the Trump White House will work with the Justice Department to decide what exactly the committee gets to see, two senior administration officials told The Daily Beast. And, so far, the White House has not waived executive privilege regarding any of Mueller’s materials, the two officials said.
So what did Nadler actually win? Even originally, Barr appeared willing to negotiate some access to underlying material, but wanted the committee to develop a list of specific items after reviewing the less-redacted version of the report. That doesn’t sound unreasonable, especially since Barr and Robert Mueller took the time to produce the eyes-only-Congressional-leadership version of the report — and Barr released almost everything else in the report publicly. Nadler and his cohort could have easily started with specific underlying-evidence requests from the public version while they perused the redacted material for more.
For all the sturm und drang of the weeks in between, all Nadler got in his deal was a chance to start negotiating for the underlying evidence before reading the report. According to the Daily Beast’s sources Nadler got nothing at all on executive privilege, which matters especially because of Nadler’s ambitions to recreate Mueller’s investigation on obstruction now that Russia-collusion turned out to be a dead end. Practically everything Mueller developed on obstruction came from interviews with White House staff, almost all of which could be covered by executive privilege … and likely will be by Donald Trump. If Nadler didn’t get any concessions on privilege, then this weeks-long drama was a complete waste of time.
Now Nadler will press the full House to issue a blanket authorization to pursue subpoenas, including using lawsuits to pry loose testimony from Don McGahn and others. His colleagues must be wondering whether Nadler will deal that away eventually, too. As Woodruff notes, it’s mostly for show at this point:
[T]he House will vote on a largely symbolic resolution on Tuesday regarding efforts to enforce Congressional subpoenas. The resolution is sometimes called a “contempt vote,” but the word “contempt” is not in its text. Rather, it simply reiterates a legal view that House Democratic Leadership already holds: that the five top members of the House can green-light civil litigation by committee chairs who want federal judges to make witnesses comply with their subpoenas.
Democratic staff who briefed reporters on the vote several days before it was scheduled said the resolution is important because it lets members of Congress take a vote to support subpoena enforcement efforts. But the vote doesn’t actually impact how or if those subpoenas get enforced. And while the resolution says Congress can try to enforce Nadler’s subpoena demanding Barr fork over Mueller’s underlying evidence, Nadler has agreed to hold off on enforcement moves because of the deal he announced yesterday.
Perhaps not coincidentally, the other big news this morning is that Nadler’s pressing Pelosi to start an impeachment process:
Speaker Nancy Pelosi and House Judiciary Committee Chairman Jerry Nadler, two longtime allies, are clashing over whether to begin an impeachment inquiry against President Donald Trump — a sign of how toxic the split over Trump has become for House Democrats.
Nadler has twice urged Pelosi in private to open a formal impeachment inquiry, but the speaker, backed by the majority of her leadership team and her caucus, has maintained that impeaching the president would backfire on Democrats without meaningful Republican support. And there is no sign that Trump’s GOP firewall is cracking.
On top of which, there is now evidence that Nadler’s cracking. Pelosi’s smart not to leave this in his hands.
Update: How did I forget to include this classic Adult Swim video?