Q&A on House-Justice Dept Showdown Over Release of Unredacted Mueller Report and Contempt of Congress

The House Judiciary Committee voted on Wednesday afternoon, along party lines, in favor of a resolution to hold Attorney General William Barr in contempt for refusing to heed a subpoena for the full Mueller Report and underlying documents.

To understand the day’s developments better and what might happen next, we turned to Just Security’s Andy Wright with our questions. Wright has served in both the White House Counsel’s Office and as Staff Director and Counsel to the national security subcommittee of the House Committee on Oversight and Government Reform .

Question 1. What are the House Democrats trying to get their hands on? In other words, what is this fight really about? Some commentators suggest it is primarily a small, if not petty dispute over the number of congressional members and staff who can see the “less-redacted version of the report” (the full report minus what the Justice Department has designated grand jury material). But isn’t this a significant dispute over members of Congress getting to see the full Mueller report and the underlying documents on which it relies?

Wright: Part of the disputes here relate to Congress’s institutional prerogatives (such as authority to structure its hearings as it sees fit) and another part relates to the substance of Congress’s ability to learn sufficient information to execute its constitutional responsibilities. By the same token, the Executive has interests in institutional protocol (such as the Attorney General questioned by committee staff), and accommodation as well as substantive confidentiality interests. While the institutional prerogatives are important, it is important to maintain a focus on the bigger substantive picture.

The underlying documents here — the FBI’s 302 interview memos, etc. — are really likely the most important prize for the Committee.

Question 2. Why won’t Chairman Nadler view the less-redacted version of the report that’s currently available to a small group of Congress? Does his decision to refrain from first seeing the less redacted version and then negotiate further with DOJ about releasing more information hurt his posture in future litigation?

Wright: I am hesitant to speculate on his motives. When I was on a committee, we generally accepted every offer to see more information with an explicit reservation of rights to maintain our fuller request.

Question 3. Major news outlets have described the White House’s actions as invoking executive privilege over the entire report, but isn’t it more accurate to describe the White House action as a prophylactic, provisional assertion over the entire report until the White House can decide which parts of the report and underlying documents are subject to executive privilege?

Wright: The portions of the report that have been publicly released are simply waived. As for the redacted portions, the president can always dial back the scope of his asserted privileges later.

Question 4. How plausible is it that the administration has not already determined which parts of the Mueller report and underlying information is subject to executive privilege? What in the Mueller report and underlying documents can and cannot be covered under executive privilege? Specifically, what about grand jury materials related to cases that have now been closed? What are the areas in which the White House’s claims of executive privilege may be strongest?

Wright: Under executive branch legal doctrine, executive privilege covers numerous types of confidentiality interests, including presidential communications, deliberative processes, state secrets like intelligence sources, adjudicative processes, and grand jury materials. Attorney General Barr unfortunately used “executive privilege” as shorthand for presidential communications and deliberative processes and not the other confidentiality interests. But as I wrote a week ago, these confidentiality interests are now all going to fall under the president’s assertion of executive privilege. It is really a blanket term covering a number of rationales for withholding information, each with their own potential legal rules.

Question 5. What are the historical precedents for holding an attorney general in contempt? Who decides who is going to win this fight?

Answer: Eric Holder is the only Attorney General to have been held in contempt of Congress. At this point, the federal courts will be the most important actors, but a changing political environment could have the potential to change the negotiating position of the political branches. For Congress to win, it will need both a substantive ruling in its favor delivered in a timely way. A substantive win that takes two years is of little value to Congress’s power to obtain information from future administrations.

Question 6. What happens next?

Wright: The full House of Representatives will have to pass on the contempt resolution authorized by the House Judiciary Committee, along with an explicit authorization for the House to pursue subpoena enforcement litigation.

Question 7. How long will it take to resolve?

Wright: That is the $64,000 question. Judicial resolution has taken too long for Congress’s purposes in the past. But the fact that there are already opinions that came out of the Harriet Miers and Eric Holder subpoena enforcement cases could mean a shorter judicial time frame now.

Question 8. What does it mean to hold the attorney general in contempt? Is it essentially a slap on the wrist? Are there any consequences?

Wright: I would note that a finding of contempt of Congress comes with reputational costs. But as a legal matter, Congress has three types of contempt enforcement mechanisms — inherent contempt (congressional detention), criminal contempt (prosecution), and civil contempt (subpoena enforcement litigation). The first two of which are off the table for a sitting Attorney General following a presidential assertion of privilege for practical and legal reasons. So, the House will pursue its case in a civil case in federal court.

Question 9. Does this showdown signal a constitutional crisis?

Wright: Looking at this dispute in isolation, it is premature to characterize a standoff between Congress and the Executive over redactions the Executive bases on grand jury material, ongoing investigations, and intelligence sources and methods as a constitutional crisis. The controversy is ripening into a court case where a judge will have an opportunity to rule. I would hope the courts would resolve the legal questions fairly quickly, although previous cases took too long for Congress’s purposes.

 

Image: House Judiciary Committee Chairman Jerrold Nadler (D-NY) presides over a mark-up hearing considering holding Attorney General William Barr in contempt of Congress for not providing an unredacted copy of special prosecutor Robert Mueller’s report,  May 08, 2019 (Photo by Chip Somodevilla/Getty Images)

 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, Partner at K&L Gates, former Associate Counsel to the President in the White House Counsel’s Office. Follow him on Twitter (@AndyMcCanse).

Just Security

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