Attorney General William Barr refused to appear before the House Judiciary Committee at its hearing today on the Mueller Report, further escalating the battle between the executive and legislative branches.

The Attorney General objected principally to the Majority’s proposed format of allowing an additional hour of inquiry (divided equally between the parties), when Committee staffers would also be allowed to question the Attorney General. Department of Justice Spokesperson Keri Kupec argued that, “Chairman Nadler’s insistence on having staff question the Attorney General, a Senate-confirmed Cabinet member, is inappropriate. Further, in light of the fact that the majority of the House Judiciary Committee — including Chairman Nadler — are themselves attorneys, and the chairman has the ability and authority to fashion the hearing in a way that allows for efficient and thorough questioning by the members themselves, the chairman’s request is also unnecessary.”

Judiciary Chairman Jerrold Nadler (D-N.Y.) responded, “I understand why he wants to avoid that kind of scrutiny, but when push comes to shove, the Administration may not dictate the terms of a hearing in our hearing room.” Chairman Nadler ratcheted up the rhetoric, claiming that Barr is “terrified of having to face a skilled attorney.”

To be sure, there is precedent for Congressional staffers questioning Administration officials in high-profile public hearings. From Watergate, to Iran-Contra, to  Whitewater, to the recent outsourcing of the Republicans’ handling of Dr. Christine Blasey Ford’s testimony during Justice Kavanaugh’s confirmation, we have seen members cede their questioning.   

While Chairman Nadler is correct that the Committee does set its own rules in its own house, the Department of Justice’s posture is also not unprecedented. I previously served as a career attorney in the DOJ’s Office of Legislative Affairs and we regularly negotiated with Committees over hearing format and procedure – not because we wanted to sweat the small stuff, but because we wanted to ensure the preservation of the balance of powers as co-equal branches of government.

For example, when a Committee wished to put a Department witness on a panel along with non-governmental witnesses — including, at times, potential subjects of investigations, potential crime victims, or advocacy organizations — we strenuously objected on a variety of grounds, including citing the potential that placing the prosecutor and a witness at the same table could damage ongoing law enforcement activities, but also because we believed that co-equality of branches merited the government’s own panel (we did not object to appearing with witnesses from other agencies) where Congress could conduct its oversight over the Executive branch.  

With non-governmental witnesses, including those adverse to the Department, Committees were providing a platform for non-Congressional oversight. We also set forth our own position on how much notice we would require before agreeing to testify– we asked for two weeks notice – in order to draft testimony and undertake the tedious and exhausting clearance process both within the Department and through interagency stakeholders. This practice was critical to ensuring that the Administration could speak with consistently with one voice on policy matters. It also helped ensure that every statement made by an administration official could be checked for accuracy. Practically speaking, it made for better prepared testimony and answers at hearings.   

Staff regularly conduct witness interviews, author congressional reports, and represent their Members in a variety of settings. Yet congressional rules also prohibit staff from casting votes when their member is absent or speaking on the floor on behalf of their bosses.  

So where along this spectrum does staff questioning at a hearing fall?

While the DOJ has argued that it would be “inappropriate” for staff to question the Attorney General, they have not identified a constitutional impediment to doing so. If a subpoena is issued to compel Barr’s testimony, however, and the matter is raised before the judicial branch, a court may ultimately hold that Barr must appear. But the court will be extremely loathe to umpire what it could consider a political and seating dispute between the other branches. Instead, a court may direct the parties to return to the long-established accommodations process and work it out behind the scenes. In that process the Executive recognizes the legitimate interests of the Legislative branch and recognized its own obligation to attempt to meet those needs – the result could be that members conduct the questioning, but the Committee does go into closed session to discuss more sensitive portions of the report – a compromise. That does not mean the role of staff is any more diminished or their presence felt any less.

The American public elected this House on campaign promises to conduct robust oversight over the Administration. And there are Members of Congress on the dais who can skillfully conduct the questioning of the Attorney General. I understand the arguments that members have so much on their plates that only the Committee staff who have delved deeply into the documents and mastered the subject matter are in the best position to ask follow-up questions. But staff can and do prepare their members, write questions for their side of the aisle via committee memos and meetings, pass notes, whisper in members’ ears, and otherwise assist their members.

We saw some Senators land effective punches at Barr’s hearing on Wednesday. We have seen, in the recent past, Senator Carl Levin conduct a highly technical 10-hour marathon hearing on the financial crisis involving complex mortgage instruments because he was prepared, worked closely with staff, and got up to speed on the topic as any constituents would and should expect. And there are other options available to the Chairman: he can have his members yield their time and questioning to a designated member. There are other options for the Committee as well – they can call Attorney General Barr or outgoing Deputy Attorney General Rod Rosenstein in for a transcribed interview – conducted by staff after he leaves office.  

At the end of the day, one must also recognize that Congressional oversight is an inherently political process. At the Department, our first instinct was to have the DOJ’s political appointees testify before Congress – in order to protect career officials from having to carry political water in a partisan setting. And while very few congressional staff are apolitical, there is something to be said for elected officials squaring off one-on-one against a Senate-confirmed Cabinet member as co-equals.

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