The congressional debate over the conclusions of the Mueller report is entangled in an equally fierce fight over access to the document and its witnesses.
Attorney General William Barr has repeatedly declined Democrats’ requests to release the unredacted report and question key witnesses on the lawmakers’ terms. In return, House Judiciary Chairman Jerry Nadler, D-N.Y., launched a House Judiciary Committee vote on whether to hold Barr in contempt of Congress — a move that prompted the White House to invoke executive privilege over the entirety of the Mueller report.
The House Judiciary Committee votes on whether to hold Attorney General William Barr in contempt of Congress
The House Judiciary Committee voted 24-16 on Wednesday to hold Barr in contempt of Congress. Now, the issue will go before the full House, where it will likely spark a torrent of legal debates about the balance of power. “The reality is that we’re in a space that no one really knows what the right answer is,” said Philip Hackney, professor of law at the University of Pittsburgh. Here’s what we do know.
What is contempt of Congress? The charge has existed since 1795, when the House of Representatives asserted that its power to legislate gave it the inherent ability to prosecute individuals for impeding Congress. It is a complicated piece of law, and can be used to pursue either a criminal or civil offense. The criminal offense, made law in the 1930s, is a misdemeanor, and happens when a witness or documents are requested but the person involved “willfully makes default, or … refuses to answer any question pertinent to the question under inquiry.”
What is the process? First, either the full House or Senate must pass a resolution naming the person(s) and charging them with contempt of Congress. Democrats seem to have enough House votes currently to do this. Next, the case moves to the local U.S. attorney, usually in Washington, D.C., to prosecute. Reminder: That U.S. attorney, like all U.S. attorneys, works for the Justice Department — and the attorney general.
Would the Justice Department prosecute the attorney general? In a statement late Wednesday, the Department of Justice said that Barr “could not comply with the House Judiciary Committee’s subpoena without violating the law, court rules, and court orders, and without threatening the independence of the Department’s prosecutorial functions.”
“No one, including Chairman Nadler and his Committee, will force the Department of Justice to break the law,” the department added.
In recent years, the Justice Department has declined to move on contempt charges involving either the attorney general or any executive official.
“It’s a fascinating situation in democracy,” Hackney said, pointing out that these cases very quickly go to court. “It is a strict separation of powers question.”
So, what have courts said? The short answer is that courts have upheld Congress’ theoretical power in similar situations. The long answer? In reality, those same courts have refused to enforce that power, usually returning mixed decisions that accept and reject some arguments by both sides.
What has happened in the past? The two most recent cases of this constitutional standoff involved former Attorney General Eric Holder in 2012 and former White House counsel Harriet Miers in 2008. Both conflicts ended the same way: the contempt charge was stuck in a court battle for so long that a new president and Congress were elected. Those cases never made it to the Supreme Court because American voters elected new presidents (and new administration officials took office along with them).
What could a contempt charge mean for Barr? Recent contempt of Congress charges against executive branch officials, including the attorney general, have not led to any consequences for those officials because courts are reluctant to enforce them. That has meant, for the past decade, Congress’ contempt power has effectively had no teeth.