The House Judiciary Committee has voted along party lines to hold the attorney general of the United States in contempt.
It would behoove Democrats to explain President Trump’s egregious conduct in terms that capture the seriousness of the moment. The Office of Legal Counsel memo says we cannot indict a president, but William P. Barr can exonerate him without examining the underlying evidence and then conceal the unredacted report from Congress.
Democrats must explain to voters that the precedent Trump is setting would have made impeachment of Richard M. Nixon impossible (the House eventually went to court to get the unredacted report from the independent prosecutor), would make it impossible to investigate future presidents and would be a green light for president to engage in wrongdoing knowing they can stonewall Congress while simultaneously avoiding indictment. (House Judiciary Committee Chairman Jerrold Nadler correctly stated, “If allowed to go unchecked, this obstruction means the end of congressional oversight.”)
Noah Bookbinder of Citizens for Responsibility and Ethics in Washington tells me, “The assertion of executive privilege over the entire Mueller report and supporting documents is laughable as a legal matter. The Mueller report was not prepared as advice to the president, which is what executive privilege was meant to protect." He continues, “Much of it concerns events before the president took over or wrongdoing by executive branch officials, neither of which would be covered by the privilege, and the privilege was waived for much of the subpoenaed material either when that material was made public or when the White House voluntarily made it available to investigators.” He points out that “if the report fully exonerates the president as he has repeatedly stated, it would not make sense for him to assert privilege.” He concludes, “It’s clear that this is in fact an effort to delay and obstruct legitimate congressional oversight.”
Former federal prosecutor Mimi Rocah concurs. “Executive privilege clearly doesn’t apply to a great deal of the Mueller report which deals with the election and transition before Trump was even president,” she tells me. “This blanket assertion by Barr and the White House shows this isn’t about legal arguments but political stonewalling.”
Republicans for the Rule of Law is doing its part to expose Republican hypocrisy, releasing this clip on Twitter of Sen. Marco Rubio (R-Fla.), who seemed to understand how to wield the power to hold an obstructionist attorney general in contempt — when the president was a Democrat:
“Every White House, of course, has the ability to properly invoke executive privilege in order to protect certain information,” says attorney Mark S. Zaid. “The Trump Administration’s invocation to protect the special counsel report in the wake of a subpoena from the House Judiciary Committee is, however, odd, at least from a legal, nonpolitical standpoint.” He explains, “Much, if not every aspect, of the privilege has seemingly been waived in light of the cooperation with the special counsel’s investigation, as well as with respect to the issuance of the report itself. The effect of the invocation is no doubt to simply erect an eventually penetrable wall that serves to delay the process and ultimate ending.”
Other committees may go down the same road as the House Judiciary. House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) vowed on MSNBC, “If the administration continues this stonewalling, we’re going to have to prosecute, and that includes contempt. We’re moving forward in our own committee because we have a separate basis for getting all the counterintelligence information in the report. … They are equally stonewalling us.”
The House Ways and Means Committee is taking a different approach. It seems to have decided to go straight to court rather than to wade through the subpoena and contempt process. This certainly has its benefits given that the statute is clear and Trump dare not ignore a court order.
“The president’s wholesale, blunderbuss assertion of executive privilege over the entirety of the Mueller report is legally groundless to the point of being preposterous,” says constitutional scholar Laurence Tribe. “The redacted portions of the report and the underlying masses of evidence — the only items not already in the public domain — include vast amounts of material that cannot conceivably be described as subject to any of the several forms of executive privilege as that privilege was defined in the Nixon tapes case.” He explains, “What’s at stake here goes far beyond militarily sensitive or national security information and confidential advice to the president — the categories identified as potentially shielded by executive privilege in Nixon. All or nearly all of the grand jury material redacted from the currently public report, for instance, has nothing at all to do with executive privilege and isn’t shielded by any version of that privilege.” And Tribe warns, “This reckless invocation of executive privilege gives the whole concept a stench of coverup — a sad fate for an important principle with a number of entirely valid applications.”
Whether by court order or by subpoena/contempt/impeachment of Barr and others carrying out Trump’s obstructionist conduct, the House must act. Republicans’ complicity in this attempt to obliterate Congress’s powers will come back to haunt them when a Democratic president is in power. Unfortunately, none seems capable of defying Trump and seeing past the moment.