Representative Jerrold Nadler, the New York Democrat who is the House Judiciary Committee chairman, proclaimed, “We are now in a constitutional crisis. Now is the time of testing whether we can keep a republic, or whether this republic is destined to change into a different, more tyrannical form of government. We must resist this." House Speaker Nancy Pelosi agreed with Nadler’s hyperbole, which followed his committee’s partisan vote on Wednesday to recommend that the Democrat-controlled House of Representatives hold Attorney General William P. Barr in contempt of Congress. Democrats are livid that Attorney General Barr would not break the law by acceding to their demands. They want to hold him in contempt for not complying with the committee’s subpoena and turning over Special Counsel Robert Mueller’s unredacted report as well as the underlying materials that include secret grand jury information protected by law. President Trump had also asserted executive privilege to prevent disclosure of the full report and underlying materials to Congress.
Assuming that the full House proceeds to hold Attorney General Barr in contempt, it will have to go to court to enforce the subpoena. Any ensuing litigation can be tied up in the courts for months, if not longer.
Contrary to Nadler’s fear-mongering, shared by Pelosi, the country is not facing a constitutional crisis. Nadler and his fellow Democrats have manufactured their own crisis. More than 90 percent of the Mueller report was released to the public without redactions. The majority and minority leaders of the House and Senate, and chairs and ranking members of select House and Senate committees, including Chairman Nadler and Republican Ranking Member Doug Collins, along with a single staff member each, were offered the opportunity to view even more of an unredacted version of the report, except for grand jury materials. The Democrats declined to do so.
The redacted portions involving grand jury information must remain secret as a matter of law, with few exceptions that would not appear to apply here. Rule 6 (e) of the Federal Rules of Criminal Procedure specifically provides that “an attorney for the government,” among other individuals, “must not disclose a matter occurring before the grand jury.” Congress does not have any special constitutional entitlement to require the Justice Department to hand over otherwise-secret grand jury materials without court approval. The Justice Department has long expressed concern – going back more than 30 years prior to Nadler’s spat with Attorney General Barr – regarding separation of powers implications when Congress demands grand jury material. “Independent access by Congress to grand jury materials without the consent of the Department of Justice would seriously endanger grand jury secrecy and thereby weaken the grand jury as an institution,” wrote the then-Acting Assistant Attorney General of the Office of Legal Counsel in a 1985 opinion.
First, Chairman Nadler’s House Judiciary Committee sought to shift the burden to the Justice Department to seek permission from the district court to produce the grand jury materials to the committee. Then Nadler suggested that his committee and the Justice Department work together to obtain such permission. Frustrated that the Justice Department would not do his bidding, he complained in a letter dated May 3, 2019 to Stephen Boyd, Assistant Attorney General, that the Justice Department “remains unwilling to work with the Committee to seek a court order permitting disclosure of materials in the report that are subject to Federal Rule of Criminal Procedure 6(e).” The Justice Department has no such legal obligation.
Instead of going to court itself immediately to seek such permission, Nadler’s committee decided to go the purely partisan route and recommend holding Attorney General Barr in contempt for protecting the secrecy of grand jury materials as required by law. House Republicans waited hundreds of days before ultimately deciding to hold former Attorney General Eric Holder in contempt of Congress in 2012 for not handing over materials relevant to the “Fast and Furious” gun trafficking congressional investigation. Nadler at that time boasted in a tweet: “Just joined the #walkout of the House chamber to protest the shameful, politically-motivated GOP vote holding AG Holder in contempt.” Now Nadler has hypocritically led his committee to recommend a finding of contempt against Attorney General Barr in far less time than the Republicans took in 2012, while refusing to negotiate in good faith to reach an accommodation with the Justice Department.
“Why this rush?” asked Representative Collins. “Without any valid legislative or administrative reason, we can only assume Democrats, led by the chairman, have resolved to sully Bill Barr’s good name and reputation.”
There are some on the left suggesting that the House of Representatives consider using what has been called its “power of inherent contempt” to order its sergeant at arms to arrest Attorney General Barr for disobeying a lawful order of Congress and detain him if necessary for trial. Representative Jamie Raskin of Maryland, for example, told a writer for The Atlantic that “we should be aware that Congress has inherent powers of contempt that can relate to fines, orders, as well as arrests.”
Representative Raskin cited a Supreme Court case nearly 200 years old for the proposition that Congress can constitutionally enforce its own orders, including by having its sergeant at arms detain the alleged offender, even if not expressly authorized in the Constitution. The case he cited involved an attempt by an individual to bribe a member of Congress. The Court concluded that if the House of Representatives did not possess the implied power of contempt it would “be exposed to every indignity and interruption, that rudeness, caprice, or even conspiracy, may meditate against it.”
Whether the Supreme Court today would continue to uphold the constitutional validity of Congress’s sweeping assertion of the power of inherent contempt is highly questionable. There is virtually no chance that it would allow Congress to exercise such asserted power against a senior member of the co-equal executive branch of government, who is abiding by the president’s claim of executive privilege and seeking to comply with existing law protecting grand jury secrecy. Just imagine a stand-off between the sergeant at arms and executive branch law enforcement officials if the sergeant at arms attempts to take Attorney General Barr into custody and detain him. Talk about precipitating a constitutional crisis!
Nadler and his cronies have contemptuously sought to paint Attorney General Barr as the archenemy of the rule of law when the attorney general has done all he can to make as much of the Mueller report public as possible without violating the law. They are trying to discredit the attorney general to get at the president and to cast doubt on the results of any Justice Department investigation into how the Russian collusion hoax got started in the first place. It’s time for the Republicans to walk out when Nadler’s contemptible contempt resolution against Attorney General Barr comes to the floor of the House.