The Barr-Nadler Subpoena Standoff: Still Room for Accommodation?

Tensions continue to escalate in the inter-branch standoff over unfettered access to the Mueller report and its underlying evidence and related legal materials. On Wednesday, the House Judiciary Committee voted along party lines to hold Attorney General William Barr in contempt of Congress for failing to comply with the subpoena it issued on April 18. The resulting headlines focused on a contempt battle over release of the “full Mueller report,” but this is not where the real fight lies.

The Judiciary Committee’s subpoena requests not only “the complete and unredacted copy of the report;” but also all of the documents referenced in the report, as well as all of the documents obtained, and the investigative materials created by the Office of the Special Counsel (OSC).

As Barr noted in his May 8 letter to President Donald Trump, in which he requested invocation of the preemptive or “protective assertion” of executive privilege, the Special Counsel’s files contain millions of pages, including classified materials, “bearing upon more than two dozen criminal cases, many of which are ongoing.” And while it is important to remember that Barr’s resistance to the committee’s subpoena is set against the backdrop of the White House’s across-the-board resistance to congressional oversight — with the President recently proclaiming, “We’re fighting all the subpoenas” — the Justice Department’s assertions when it comes to protecting its law enforcement equities, including materials related on ongoing criminal investigations, are rooted in longstanding DOJ practice.

We’ve seen this movie before: It was called Fast and Furious

Comparisons are now being drawn with the contempt proceedings against former Attorney General Eric Holder. In 2012, the Department of Justice (DOJ) also requested that the White House invoke executive privilege to protect internal DOJ deliberations, including how the department would respond to congressional inquiries concerning the botched gun-running investigation, known as Operation Fast and Furious. As Holder argued, production of such documents would inhibit the ability of DOJ to engage in candid discussion and strategize about how to answer questions from a separate, co-equal branch of government by chilling internal debate. The contempt proceedings in 2012 largely centered around DOJ’s refusal to turn over to Congress its own deliberations on how to answer Congress (comparing it to a hypothetical situation where lawyers would have to turn over in discovery, both the requested documents, and their own attorney impressions about how to handle said documents). But, the department also refused to provide to Congress materials concerning pending criminal investigations, grand jury materials, legal and investigative activities under seal and other law enforcement-sensitive materials.

The Linder Letter and DOJ’s longstanding position on protecting pending matters and internal deliberations

The principles governing the DOJ’s interactions with Congress were articulated over a decade earlier. In January of 2000, the Justice Department set forth its general approaches to accommodating congressional oversight in a letter to then-Republican Chairman of the House Subcommittee on Rules and Organization John Linder. The letter was in response to a hearing entitled, “Comity, Cooperation, and Confrontation,” about strengthening the congressional hand in oversight, especially vis-à-vis the Justice Department. The departmental response, informally known within DOJ as the “Linder Letter,” focused on two principal areas where DOJ would go to the mat to protect. They were open matters, namely ongoing investigations and criminal prosecutions, and internal Justice Department prosecutorial deliberations.

With respect to open matters, the department argued that the separation of powers precluded congressional access to otherwise confidential investigative files as provision of such materials would make the legislative branch a “partner” in what is a uniquely executive branch function: criminal law enforcement. Additional concerns included the potential that elected officials would be appearing to exert influence over investigations and prosecutions and second-guessing DOJ decision-making. From a practical perspective, prosecutors feared that the revelation of ongoing covert law enforcement activities could “tip off” the targets, allowing them to destroy evidence, flee or otherwise evade justice.

In the case of internal deliberations, the department has long safeguarded its ability to have open, candid and independent assessments of evidence and law. Congressional disclosure could stymie the ability of government officials to argue, debate and provide frank advice in the furtherance of prosecution and policymaking. Indeed, the Supreme Court has recognized the potential chilling effect:

Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.

While this position is not unique to DOJ, and is a fundamental precept of the wider legal profession (e.g. non-discoverability of attorney work product or impressions) and also an exception to disclosure under the Freedom of Information Act, the Linder Letter set forth that:

The foregoing concerns apply with special force to Congressional requests for prosecution and declination memoranda and similar documents. These are extremely sensitive law enforcement materials. The Department’s attorneys are asked to render unbiased, professional judgments about the merits of potential criminal and civil law enforcement cases. If their deliberative documents were made subject to Congressional challenge and scrutiny, we would face a grave danger that they would be chilled from providing the candid and independent analysis essential to just and effective law enforcement or, just as troubling, that they might err on the side of prosecution simply to avoid public second-guessing.

Additionally, as a practical matter, revelation of the prosecutors’ deliberations – which often include analyses of potential defenses, could also provide a roadmap for evasion by future defendants who would view prosecution or declination memoranda as the “government playbook.”

The Mueller report does not contain the back-and-forth deliberations between the prosecutors and investigators that the department has traditionally protected. But, to open up the underlying materials and OSC files that could contain these candid conversations to political scrutiny would be a scenario where the department has, in the past, fought tooth-and-nail to prevent. The department has long seen its obligation to congressional oversight as requiring it to explain the rationale and bases for its final decisions, but not lifting the veil on who took this position or that during that pre-decisional process.

The concerns outlined in the Linder Letter are longstanding and even cite Attorney General Robert Jackson’s opinion from 1941 which stated,

“It is the position of the Department, restated now… that all investigative reports are confidential documents of the executive department of the Government, to aid in the duty laid upon the President by the Constitution to ‘take care that the Laws be faithfully executed,’ and that congressional or public access to them would not be in the public interest. . ..”

The Linder Letter also considers protection of the privacy interests of parties investigated, but not prosecuted by the department, including the possibility that internal discussions may contain unflattering personal information as well as assessments of witness credibility, disclosure of which “could be devastating to the individuals they discuss.”

How DOJ may view today’s subpoena through the Linder lens

As the Linder Letter makes clear, the Justice Department usually will draw a bright line against production of prosecution and declination memoranda. But the Mueller Report is essentially a form of such a document, albeit one that the Special Counsel has likely long envisioned becoming public due to the extraordinary nature of the subject matter. As such, from an institutional perspective, Barr likely believes he has well accommodated Congress and the public, in providing a minimally redacted version of the Mueller Report in a timely manner.

The four categories of redactions, “harm to ongoing matters,” “investigative technique,” “grand jury secrecy,” and “privacy” interests of third parties, have long been protected by DOJ under the leadership of both parties. This has been to avoid the disclosure of materials that would compromise law enforcement operations. Barr’s redactions were made in concert with the Office of Special Counsel, and it is likely Mueller’s team, or the U.S. Attorneys Offices or other DOJ prosecuting components, would have similar concerns about protecting materials related to ongoing investigations and cases. After all, there are, potentially millions of pages of materials responsive to the House Judiciary Committee’s subpoena.

It would not be irrational for the department to assert that complying with the subpoena for underlying documents would require enormous resources and time to conduct a thorough review in order to protect its law enforcement equities. That is perhaps why the committee’s top Republican, Rep. Doug Collins, has complained that the committee waited only 43 days from request to contempt vote, as compared to the 250 days afforded to Holder in 2012, and the subpoena itself has only been live for three weeks.

Weighing congressional interests against DOJ equities

One threshold question that arises from this standoff is whether or not the subpoena is an oversight request per se. Is the committee’s investigation about the performance of the OSC or DOJ malfeasance or some other irregularity during the course of the Mueller probe? In the memorandum in support of the contempt resolution, House Judiciary Chairman Jerome Nadler (D-N.Y.) articulated three main purposes for the committee’s investigation: investigating the president and his administration for misconduct; 2) whether the conduct revealed by the report warrants legislative action in the areas of campaign finance, election security, or other areas covered by the report; and 3) whether the conduct described by the Mueller Report warrants further committee action, including impeachment proceedings.

So, while the Justice Department certainly would prefer for Congress not to Monday morning quarterback its prosecutorial decisions, the committee has articulated its own unique legislative and constitutional need for the information requested. In other words, they are not attempting to be co-prosecutors, but to conduct work that is solely within their exclusive purview, of legislation and possible impeachment.

The OSC specifically contemplated this avenue for congressional remedies in its report when it wrote that, “a federal criminal accusation against a sitting President would … potentially preempt constitutional processes for addressing presidential misconduct” – i.e. impeachment.

The committee’s position on obtaining certain materials related to ongoing matters may also be strengthened, once those matters are resolved. While the department has long protected materials related to open cases and internal deliberations, as Marty Lederman explained in a previous Just Security post, once an investigation has been closed, considerations that counsel against discussions of ongoing cases “lose some of their force.”   This principle is set forth in a 1986 OLC opinion which stated:

“Access by Congress to details of closed investigations does not pose as substantial a risk that Congress will be a partner in the investigation and prosecution or will otherwise seek to influence the outcome of the prosecution; likewise, if no prosecution will result, concerns about the effects of undue pretrial publicity on a jury would disappear.”

Here, while General Barr has cited the existence of related cases where disclosure could harm ongoing enforcement efforts, production to congress could be limited to materials related only to closed matters. That said, in the Linder Letter, the DOJ has also argued that even in closed cases, revealing internal deliberations post hoc would have the same chilling effect on candid deliberations.   Such disclosure could also provide insight and advantage future criminal wrongdoers in their negotiations with prosecutors.

Given all of these factors and considerations, the question of accommodation should not be off the table completely. Of the millions of pages of materials found and generated by Mueller’s team in the course of its investigation, both sides can still make a determination as to which could be useful to, and made available to Congress without jeopardizing ongoing cases.

There may still be room to provide OSC-generated investigative materials while safeguarding internal deliberations. For example, if, hypothetically, the OSC’s investigators created a flow-chart of factual evidence, that could be provided to Congress without revealing the prosecutor’s impressions and analysis of the information.

These are the types of conversation that should be happening if the committee wants to obtain as much information as it can. The record demonstrates that Nadler was willing to “limit and prioritize” his request, including first trying to obtain FBI Reports of Investigations (known as “302”s). So, this is a potential starting point for renewed negotiations. The department has also offered to provide an in camera-review of a less redacted version for Committee and Congressional leadership – which was rebuffed by Chairman Nadler, who claimed that restrictions on how he could share that information with his colleagues were too prohibitive.  However, that offer still leaves the ball in the congressional court.  If the Committee Chair is able view materials in camera, then he may be better positioned to argue with greater specificity what underlying materials he needs and why merely viewing a less redacted version of the report cannot satisfy the Committee’s interest.

As Just Security’s Andy Wright opined, it is premature to characterize the contretemps over contempt as a constitutional crisis, though Nadler has already deemed it as such. But the larger worry is, as former House General Counsel Kerry Kircher has lamented, “Nobody [in the executive branch] likes [congressional oversight]. But heretofore everybody recognized it had its place,” he explained. “You mostly argued about degrees. It feels now we’re not arguing about degrees anymore. We’re arguing all or nothing … and that’s a significant escalation.”

Hopefully, de-escalation and a return to regular order is possible. When serving as head of the Office of Legal Counsel in 1989, Barr described the accommodations process as a series of escalating steps, where Congress starts by requesting information and the executive branch responds, but acknowledges that in certain circumstances the administration may resist providing some or all of the information “because of the burden of compliance or because the information is of a sensitive nature.” Occasionally, Barr noted, “the process breaks down and a subpoena may be issued.” And only at that point, if further negotiation is “unavailing, it is necessary to consider asking the President to assert executive privilege.” If after assertion of executive privilege, the committee remains unsatisfied, they may vote to hold the agency head in contempt of Congress, and to paraphrase Barr from his OLC days, they can go to court and fight about it some more.

But a good question today is: To what end? As the civil litigation over Fast and Furious just settled this past week after seven years, will today’s subpoena and contempt fight be just as drawn out?

Meanwhile, behind the scenes, as the contempt resolution goes to the full House for a vote, and perhaps, eventually to court, nothing is preventing the parties from trying to figure out exactly what of the millions of pages of materials can actually be shared. Well, nothing except politics.

IMAGE: House Judiciary Chairman Rep. Jerrold Nadler (D-NY) holds up copies of the Starr Report during a House Judiciary Committee markup vote on a resolution to issue a subpoena to the Justice Department to receive the full unredacted Mueller report, on Capitol Hill April 3, 2019 in Washington, DC. (Photo by Mark Wilson/Getty Images)

 

About the Author(s)

Edgar Chen

Edgar Chen previously served as Counsel to the Assistant Attorney General for the Criminal Division, as well as in the Office of Legislative Affairs and the Human Rights and Special Prosecutions Section, at the U.S. Department of Justice.