A Question Of Contempt: Why The Barr Vote Could Prove Costly For Congress

Below is my column in The Hill newspaper on the vote of the House Judiciary Committee to hold Attorney General Bill Barr in contempt of Congress. There are a number of conflicts with the Administration that present favorable grounds for Congress in a court challenge. This action is the least compelling and could ultimately undermine congressional authority with an adverse ruling.

I am honestly confused by some of the criticism including the recent column by Andrew Napolitano in Fox.com where he states “Barr knows the DOJ is not in the business of exonerating the people it investigates. Yet he proclaimed in his letter that Trump had been exonerated.” I like and respect Napolitano a great deal but that is not what the letter said. What the letter said was “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: ‘[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.’” That is true. Indeed, it was odd that Napolitano would focus on the collusion/coordination issue when many people have accepted that the conclusion of no criminal conduct was clear from the report. At no point does Barr say that Trump was exonerated. Indeed, he included the most damaging line from the report on obstruction in saying that Mueller expressly did not exonerate him on that question. Barr was addressing the conclusions on criminal conduct and I still do not see where, as stated by my friend Andrew, where Barr in the letter was “foolish,” “deceptive,” “disingenuous,” or “dumb and insulting.” Those are powerful accusations against any lawyer and should be tethered to a clear example in the letter of a false or deceptive statement.

The Napolitano letter also ignores Barr’s statement that the report would have been released relatively quickly (removing the need for the summary) if Mueller complied with his request and that of Rod Rosenstein to identify grand jury material. It remains inexplicable that Mueller allegedly ignored those reasonable requests from his two superiors. As a result, Mueller’s people had to go back through the report to identify the Rule 6(e) material, a previously requested.

Update: The Democrats are now arguing that they are not demanding the redacted Grand Jury information despite weeks of calling for the full and unredacted report — and a subpoena that demands the entire unredacted report. They now insist that they want Barr to ask the Court to release the small percentage of Grand Jury information. That is not likely in light of the long record at the Justice Department.

Here is the column:

The House Judiciary Committee is voting to hold Attorney General William Barr in contempt of Congress and to secure a vote of the entire House of Representatives in order to send the matter to federal court. The problem is that the contempt action against Barr is long on action and short on contempt. Indeed, with a superficial charge, the House could seriously undermine its credibility in the ongoing conflicts with the White House. Congress is right on a number of complaints against the White House, including possible cases of contempt, but this is not one of them.

As someone who has represented the House of Representatives, my concern is that this one violates a legal version of the Hippocratic oath to “first do no harm.” This could do great harm, not to Barr, but to the House. It is the weakest possible case to bring against the administration, and likely to be an example of a bad case making bad law for the House.

House Judiciary Chairman Jerrold Nadler (D-N.Y.) laid out the case for contempt. He raised three often repeated complaints against Barr in that he failed to release an unredacted report by special counsel Robert Mueller, allegedly lied twice to Congress, and refused to appear before the committee. Yet, notably, the only claim the committee seeks to put before a federal court is the redaction of the report. That seems rather curious since, if Barr lied or refused a subpoena as House leaders claim, it normally would be an easy case of contempt. The reason for this move is that House Democrats know both claims would not withstand even a cursory judicial review.

False statements

Democrats have struggled to focus attention on the summary Barr wrote rather than on the actual report. While Democrats claim the summary misrepresented the report, the report tracks the conclusions referenced in the letter Barr sent. Barr said Mueller did not find evidence of a crime linked to collusion or conspiracy with the Russians. That is true. He said Mueller did not reach a conclusion on obstruction. That is also true.

Barr said he and Deputy Attorney General Rod Rosenstein concluded the evidence, particularly on the lack of a clear showing of corrupt intent here, did not support an obstruction charge. That is again true. Barr then added the most damaging line of the report, stating Mueller expressly did not exonerate Trump. Barr also gave Mueller an opportunity to review his letter, but Mueller chose to decline. However, his letter was not false.

Democrats also have cited the exchange between Barr and Congressman Charlie Crist (D-Fla.) over a story about some “concerns” the letter raised among the members of the special counsel team. House Speaker Nancy Pelosi (D-Cailf.) declared what Barr said was a “lie” and a “crime.” One would assume that Barr would then be referred for prosecution and subject to an immediate impeachment. At a minimum, it would seem such an allegation would be in the contempt sanction. The problem is that what Barr said was true.

Crist noted unspecified news reports that members of the special counsel team are “frustrated at some level with the limited information” in the letter Barr sent and “that it does not adequately or accurately, necessarily, portray” the findings. Crist asked if Barr knew what they were referencing. Barr said no and said, “I suspect that they probably wanted more put out.” He added, “But in my view, I was not interested in putting out summaries or trying to summarize because I think any summary, regardless of who prepares it, not only runs the risk of, you know, being underinclusive or overinclusive, but also, you know, would trigger a lot of discussion and analysis that really should await everything coming out all at once.”

Barr was being questioned about news reports citing unnamed members of the special counsel team and their being “frustrated” by the portrayal of the “findings.” He said he did not know but added that he assumed they “wanted more put out” and he rejected the idea of releasing additional summaries. That is true. The only thing Barr did not mention was the letter that Mueller sent to him, which had not been public at that point.

Failure to appear

Various Democrats have declared that Barr refusing to appear before the committee is clear contempt of Congress. It is a point endlessly raised by House members on television but conspicuously missing in the contempt sanction. The reason is that it is not true. Barr appeared before the Senate and answered detailed questions from members. He was prepared to do the same in the House when the committee inexplicably demanded that he be questioned not just by members but also by professional staffers.

Democrats have tried to explain that the demand for questioning was due to the “complexity” of the record and issues of the special counsel report. That rationale is facially absurd. There is nothing overly complex about these issues, as shown in the Senate hearing. The committee wanted Barr examined by staff lawyers, including Norm Eisen, who handled ethics questions for President Obama. Eisen had declared months ago that the criminal case for collusion was devastating and that Trump was “colluding in plain sight,” a position expressly rejected by Mueller. The Democrats wanted to manufacture a conflict, and they have succeeded in doing so.

Report redactions

That leaves us with the only ground cited by the Democrats for contempt, which is Barr refusing to release the unredacted report. Senate Democrats attacked him at his confirmation hearing for refusing to guarantee public release of the report without redactions. As a witness, I testified that they were asking Barr to commit to a potential criminal act to secure his own confirmation. The report inevitably would contain some grand jury material, which under the law is information that cannot be publicly released without a court order. It is a crime to unveil such information.

Barr promised to release as much of the report as possible, and he has delivered. Indeed, he is not expressly given the authority to release the confidential report. Yet, he not only released it but declared executive privilege waived on its content. The key obstruction portion of the report is virtually unredacted. Just 8 percent of the public report was redacted, largely to remove material that could undermine ongoing investigations. The sealed version of the report given to Congress only had 2 percent redacted. Democrats are therefore seeking a contempt sanction on a report that is 98 percent disclosed and only lacks grand jury material.

Barr restricted access to the 98 percent disclosed report, as opposed to the 92 percent public report, due to the inclusion of evidence impacting ongoing prosecutions. Some of the withheld material is likely covered by court orders in other cases like the prosecution of Roger Stone. He has offered to expand the number of members and staff to review that material but insists on it remaining protected. But this has nothing to do with the redactions. It is the 2 percent solution to a major political dilemma of the left. Faced with a report that rejected the collusion theories of their running narrative, Democrats want to focus on those 2 percent of redactions rather than over 400 pages of findings.

So Congress now will ask a court to find civil contempt for Barr refusing to release grand jury information. The District of Columbia Circuit Court of Appeals recently rejected a district court claim to have the “inherent supervisory authority” to disclose grand jury matters because of great public interest. To make matters worse, the Justice Department has now said the president has invoked executive privilege over the entire report, making this contempt claim even less likely to prevail over the long run.

Democrats are launching the weakest possible contempt claim against the administration in a civil action with a long track through the courts. In the end, there is utter contempt in this action, but not in the case of Barr.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and represented the House of Representatives in its successful challenge to executive actions under the Affordable Care Act.

76 thoughts on “A Question Of Contempt: Why The Barr Vote Could Prove Costly For Congress”

  1. I even heard a reprehensible comment by Rep. Nadler about the access granted to him to read the report: He said that the limited access granted to him was unacceptable because he “would not be able to tell others on the committee what was in these (minimal) redacted portions of the report.”

    On a personal note, I don’t want to see this case be heard by any court. The reason? Just look at the thesis of this article. It would severely damage Congress’ standing in future cases of oversight.

    It is also noted that Congress has the right of oversight. However, they do not have the right to unbounded investigations of other parts of the federal government.

  2. The more difficult it seems the more likely the problem is in misdefining the premise or key words. So it helps to be aware of real definitions.

    This paragraph fully described the real government situation just prior to the last major election. A lesson many quickly forgot much to heir future dismay. We were at the time openly describing the congress in the following fashion:

    “Any chance the the Democrats will win this time?”

    “No and neither will the Republicans.”

    Or as we call them ‘The Government Party with two faces.’ It will be those who control at present almost fifty percent of the Senate and twenty percent of the Representative. Over fifty percent of the State houses and Governorships. The rest will come in second and third or too little to count. They aren’t known by those names. Therefore an unknown quantity.

    Those that believe in the Constitution. The rest are just yesterdays wannabe dust blowing in the wind. Those aren’t odds they are facts. No even a long shot. But come midterms different story. The ‘out’ party will pull out all the stops and spend all their money and use up all their favors but…….the odds favor those with zero funding.

    Flash forward.

    “any chance the Democrats will win this time?

    “Who” Like I said the; last time except this time the group that wins is starting with over 50% of the vote and still works without a budget and their support will go to the old third place party who now with a name change is in second place.”

    As for the uhhh let’s use their correct name. The Socialist foreigners. Who?

    Use the correct terminology then come to correct conclusions

    There is no more Democrat and Republican it’s Socialists and Constitutionalists.

    And during the new next midterm that lesson will have taken root nation wide.

    All thanks to the individual self governing citizens who truly are the well spring of power.

    Just ike the founders predicted.

  3. If only Trump didn’t win the election, then we wouldn’t have to listen to all this crap. We all know that Hilary is without stain of sin.

    1. Hillary’s life of crime began when she took a bribe from Tyson Chicken as the governor’s wife under the guise of a “cattle futures” trader. She turned $1K into $100K (big money in 1978) in 5 months while accepting a cushy do-nothing job at the Rose Law Firm, again, as the governor’s wife (they taught futures trading at Wellesley, no, Yale, yeah, Yale is well known for its futures trade curriculum.

  4. JT: “Faced with a report that rejected the collusion theories of their running narrative, Democrats want to focus on those 2 percent of redactions rather than over 400 pages of findings. So Congress now will ask a court to find civil contempt for Barr refusing to release grand jury information.”

  5. Why did the need him to get just 6E information anyway? Too lazy to read the whole thing or just didn’t want to hear their own obstructionest tirades which probably makes up 300 pages

  6. Slow news week but that one was classic comedy. How much for the little Girl? So to liven it up I just ordered my fifth copy of Bohemian Rhapsody. Why so many?

    The first two advanced ordered one for me one for my friends who are fanacticos of Queen. They did get their unopened copy and mine disappeared into the category of treasures of the bilge. Any boat owner can explain that it means where did i put that important part now that I really need it.

    So I ordered two more one for another friend and a replacement for mine. My Dentist. It came and on the way to delivery disappeared. Upon return to the boat I can’t remember where I safely stored the second ‘my copy.’ Except not in the same place as the first one.

    I now await the fifth copy and this time figure I deserve decrypt and burn rights. Nope they were all clearly marked FBI investigates… etc. But short of extradition they have no authority until I unsnowbird my life which is an annual trek.

    Now I’m in safe territory. Except maybe with my dentist.

    And I have the receipts to prove it.

    This getting old and forgetful is not what it’s cracked up to be. One doesn’t fade gracefully one just cracks into pieces and can’t find all the parts.

    Now the problem is solved. Stopped by my neighborhood more items than Amazon store and they asked…when are you going to pick up these shopping bags? Whoops Now I’m looking for the tags with the numbers.

    Cross your fingers one of them has the appointment information for the dentist.

  7. No impartial person could conclude that Barr was telling “the truth, the whole truth, and nothing but the truth” when, on April 9, testifying before a House committee, he responded to a question from Rep. Crist asking whether Barr had any knowledge of why, as had been recently reported, members of the Office of the Special Counsel might be unhappy with his March 24 letter summarizing the Mueller report’s conclusions. “Reports have emerged recently, General, that members of the Special Counsel’s team are frustrated at some level with the limited information included in your March 24th letter, that it does not adequately or accurately necessarily portray the Report’s findings. Do you know what they’re referencing with that?”
    Barr replied, “No, I don’t. I think, I suspect that they probably wanted more put out.”

    More than a week prior to this hearing, Barr had received a letter dated March 27 under the letterhead of the Special Counsel’s office. The letter was signed by Robert Mueller, but uses the plural pronoun “we” at numerous points and on any fair reading conveys concerns held not only by Mueller individually but also by the Office of the Special Counsel generally. Mueller’s letter stated: “The summary letter the Department [of Justice] sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature and substance of this Office’s work and conclusions. We communicated that concern to the Department on the morning of March 25. There is now public confusion about critical aspects of the results of our investigation.” The letter requested that Barr immediately release the Introduction and Executive Summary of each of the two volumes of the Report.

    Barr’s assertions that he did not know what the Office of Special Counsel’s concerns were, and that “I think, I suspect that they wanted more put out” were false. On April 9 Barr knew full well what the OSC’s concerns were, and he did not “suspect” that they wanted more put out, he knew that they did. He lied, and since he was under oath, he committed perjury. The apparent purpose of his perjury was to avoid the outcry that would resulted if the OSC letter had been disclosed.

    Barr’s subsequent defense before the Senate Judiciary on May 1 that his failure to disclose the OSC letter in response to Representative Crist rested on the notion that the letter expressed only Mueller’s personal discontents, so on April 9 he had no knowledge of staff concerns. That’s just not consistent with the wording of letter, and is just hair-splitting evasion.

    I do not understand how as smart, fair and impartial a lawyer as Jonathan Turley can conclude that Barr told the truth on April 9.

    1. Only in an overly lawyerly legal sense could one claim Barr was not lying.

      He was lying.

      1. Is it because your mind is obviously blind to the facts, so your eyes don’t see? “No American” colluded with the Russians….per Mueller, the Democrat savior!

    2. “Show me the man, and I’ll show you the crime.”

      – Lavrentiy Beria, Head of Stalin’s Secret Police

      The inmates have taken over the asylum.

      Democrats are engaged in a malicious prosecution, “witch hunt” and an egregious abuse of power. MIke Nifong of Duke Lacrosse notoriety went to jail for abusing his law enforcement powers. There never was a crime, probable cause or evidence involving President Trump and “collusion.” At most, there was theory about a nebulous counter-intelligence operation.

      As one contemplates the hysterical and incoherent behavior of the Feminazi White Shirt democrats, one begins to realize that it is a defensive act of last resort attempting to obfuscate and suppress the looming revelations regarding the Obama Coup D’etat in America which will likely see the leaders and actors thrown in prison soon.

      Mueller, Rosenstein, Strzok, Page and the entire FBI knew!

      Mueller, his team and the democrats all knew that the Steele Dossier was false and fraudulent 10 days before it was submitted, with “verified” at the top of each page, to the FISC.

      “Deputy Assistant Secretary of State Kathleen Kavalec’s written account of her Oct. 11, 2016, meeting with FBI informant Christopher Steele shows the Hillary Clinton campaign-funded British intelligence operative admitted that his research was political and facing an Election Day deadline.

      And that confession occurred 10 days before the FBI used Steele’s now-discredited dossier to justify securing a Foreign Intelligence Surveillance Act (FISA) warrant to surveil former Trump campaign adviser Carter Page and the campaign’s ties to Russia.

      Steele’s client “is keen to see this information come to light prior to November 8,” the date of the 2016 election, Kavalec wrote in a typed summary of her meeting with Steele…”

      – The Hill

      “POTUS (Obama) wants to know everything we’re doing.”

      – Lisa Page to Peter Strzok

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