The war between the White House and Congress hit a flash point this week, when both sides took drastic measures in their fight over the special counsel Robert Mueller’s unredacted report in the Russia investigation.
The Democratic-led House Judiciary Committee voted on Wednesday to hold Attorney General William Barr in contempt of Congress for failing to meet this week’s deadline to turn over the unredacted report and its underlying evidence.
In turn, the White House — acting on Barr’s advice — invoked executive privilege over the entire report, the underlying evidence, and all other material related to the report that Congress has subpoenaed so far.
The move set the stage for what’s likely to be a lengthy court fight between the executive and legislative branches.
It also laid bare how Democrats overplayed their hand in trying to get the full Mueller report, and how it’s coming back to bite them.
Justice Department officials most recently offered to allow 12 lawmakers and two of each of their staffers to view a minimally redacted version of the report. They also said lawmakers and staffers could keep any notes they took of the document.
Democrats shot down the offer. Instead, they pushed for the full judiciary and intelligence committees — and three of each member’s staffers — to view the entire report, underlying evidence, and grand jury material.
After the DOJ refused, the judiciary committee began voting to hold Barr in contempt, and Trump retaliated by invoking executive privilege over the Mueller report.
Following Trump’s privilege assertion, the likely next step for Congress will be to go to court and obtain a legal declaration saying the claim is without merit.
But Frank Bowman, a law professor at the University of Missouri, told INSIDER that “even though the breadth of Trump’s executive privilege claim shows it’s transparently invalid, the objective is to make Congress jump through a bunch of hoops in the courts, which will be a slow process. It’s a stall.”
Ultimately, Bowman predicted, the privilege claim will likely be struck down.
“This assertion is a blanket denial of Congress’ ability to inquire about executive misconduct,” he said. “I can’t imagine the judiciary would ultimately put up with this.”
But that doesn’t mean Congress will come out on top.
Mitchel Sollenberger, a politics professor at the University of Michigan, told INSIDER that more than anything else, he was shocked at the speed with which House Democrats moved to hold Barr in contempt.
The last time Congress held an attorney general in contempt was in 2012, when 17 Democrats joined the Republican majority after Eric Holder repeatedly refused to turn over documents related to Operation “Fast and Furious.”
Ultimately, a federal judge tossed out the charges, and Holder avoided severe penalties. But nearly a year passed before Congress went from negotiating with the DOJ to moving forward on a contempt citation against Holder.
In Barr’s case, as House Judiciary Committee ranking member Doug Collins noted on Wednesday, “[Democrats] have moved from request to contempt vote in only 43 days, and yet the Justice Department is still at the negotiating table — waiting for Democrats to arrive in good faith.”
“There’s a dance that goes on between the executive branch and legislative branch when it comes to getting documents and testimony,” Sollenberger said. “This dance hadn’t even entered its first move, so I’m flabbergasted at where we are right now.”
Meanwhile, to get access to sensitive information contained in the report, like grand jury material, the judiciary committee could go to court.
“But if this goes to court, there’s a strong chance the judge would say the DOJ was being pretty reasonable with its offers,” Michael Stern, a former lawyer who served as senior counsel to the House of Representatives from 1996 to 2004, told INSIDER.
He added: “It’s logical for the DOJ to offer a limited look while it conducts a more thorough review of the redactions. And it’s hard for Democrats to argue why they didn’t at least take up the initial offer to view a less redacted version of the report before moving forward with contempt.”
Stern described executive privilege as a “balancing test” between the interests of the executive and legislative branches.
“The judge would likely say, ‘OK, there are issues of executive privilege here, but you want me to try to resolve that when you haven’t even taken up the offer of looking at the material to explain why you need it,'” he added. “So they’d probably end up telling lawmakers to do that first, before asking for more.”
In other words, Democrats could spend months, possibly years, tangled up in the legal process and end up with the same choice they were given to begin with.
The only way to circumvent that, experts say, is for congressional Democrats to argue they need access to the full report and grand jury material because they’re relevant to impeachment proceedings. But senior Democrats are pumping the brakes on impeachment from fear of political backlash.
In all, from both a political and legal standpoint, if Democrats’ “interest is simply getting the information for further investigation, they didn’t handle this well,” Stern said.
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