The House will vote next week on a contempt citation for Barr and former White House counsel Don McGahn.
House Democrats are upping the ante in their attempt to get special counsel Robert Mueller’s full, unredacted report by threatening to hold at least two Trump administration officials in contempt of Congress.
The full House will hold a vote next Tuesday on whether to hold both Attorney General William Barr and former White House counsel Don McGahn in contempt of Congress, House Majority Leader Steny Hoyer announced Monday night. And more Trump officials could still be added, he said.
“I see every name who has refused to respond to congressional subpoenas or documents, or has been instructed by the president not to respond, [being] subject to being on that list,” Hoyer told reporters Tuesday. “I’m not going to try to name all of them.”
Frustrated by months of missed subpoena deadlines and pushback from the Trump administration, the House Judiciary Committee first passed a contempt resolution along party lines last month, at the end of a lengthy and contentious hearing. The vote came after Barr failed to deliver Mueller’s complete, unredacted report by a Monday deadline.
As a small but growing number of House Democrats call for an impeachment inquiry, the contempt resolution is a shift back to focusing Democratic ire on both Barr and McGahn.
Democrats are feeling the pressure to make a big statement against the Trump administration, especially after the president asserted executive privilege last month to block the House from accessing the entire Mueller report and its underlying documents — the first time Trump has used his executive powers to protect portions of Mueller’s findings.
“I am concerned the department is heading in the wrong direction,” House Judiciary Committee Chair Jerry Nadler (D-NY) said at the time, calling it a “clear escalation” from Trump’s DOJ.
Barr’s main objection to releasing the full report is regulations that prohibit releasing grand jury material to members of Congress. The attorney general has offered Democrats a less redacted version of Mueller’s report, but they’ve so far rejected the offer. They want the full thing.
Contempt is another way for Congress to get subpoenaed documents, by asking the US attorney for the District of Columbia or the Department of Justice to charge Barr with criminal contempt for not complying with a congressional subpoena. In theory, a charge of contempt could result in a fine or jail time for the attorney general (though in reality, that likely won’t happen).
As serious as contempt sounds, the vote itself realistically won’t amount to more than Congress sending a powerful message — unless Democrats pass a different resolution to authorize suing Barr and the Trump administration to try to get the Mueller report. They plan to do that as well, continuing to battle the Trump administration in the court.
Democrats will now try to start the process of charging Barr and McGahn with a crime. They may wind up stuck in a long, drawn-out court battle.
Here’s how contempt of Congress works
A House vote on a contempt of Congress citation isn’t coming out of nowhere; the Trump administration has blocked the Judiciary Committee’s subpoena for the Mueller report, as well as many other House subpoena requests.
Contempt of Congress citations are a tool the House or Senate can use in cases where their subpoena requests are repeatedly denied. Congress is essentially arguing that the executive branch is stonewalling and getting in the way of its ability to conduct its constitutionally obligated oversight.
But it’s crucial to remember Congress is just making another a request here, albeit a more strongly worded one. Actually getting the executive branch to comply can be difficult, precisely because the executive branch is the one with the power to prosecute the individual who isn’t complying with the subpoena request.
Here’s how Congressional Research Services legislative attorney Todd Garvey explains it in a recent summary:
First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any prosecution lies within the control of the executive branch.
How this will work on a practical level: If the full House passes the contempt resolution, House Speaker Nancy Pelosi will issue the citation for Barr to be held in contempt. She’ll pass that citation along to the US Attorney’s Office for the District of Columbia or the Department of Justice. Either the US attorney or the DOJ will likely say they don’t plan to move forward with prosecuting Barr.
That would be the end of the matter, unless Democrats pass a separate resolution to authorize going to court with Barr and the Trump administration over the Mueller report, and getting the courts to decide their subpoena request and contempt citation.
Democrats plan to take that next step, which they would likely do before using their own power of inherent contempt to fine or jail the attorney general.
“We need to do the contempt parts before House counsel goes to litigate in court,” Rep. Ted Lieu (D-CA) told reporters last month. “The first option would be to win in court; we have a very strong case.”
Democrats are feeling confident because the Trump administration has moved to block or deny every single subpoena request of theirs, not just the one for the Mueller report. At least one former Justice Department official in the George W. Bush administration thinks Trump’s broad refusal could potentially hurt his legal argument.
“The thing that’s unusual is the blanket refusal,” John Yoo, the former deputy assistant US attorney general in the Bush DOJ’s Office of Legal Counsel, told the New York Times. “It would be extraordinary if the president actually were to try to stop all congressional testimony on subpoenaed issues. That would actually be unprecedented if it were a complete ban.”
That itself is risky. If a judge rules against Congress and in favor of the Trump administration, it could set new legal precedent that could make it easier for future presidential administrations to withhold information from future congressional committees.
But if the court rules in Democrats’ favor, it could strengthen Congress’s legal standing and could compel the Trump administration to comply with the subpoenas, with more serious consequences for noncompliant officials. For instance, a judge could hold administration officials in contempt of court, rather than contempt of Congress.
Democrats have already had some success in the courts; two federal judges have upheld their subpoenas of Trump’s financial information in the House Oversight and Financial Services committees. Feeling emboldened by these early wins, Pelosi wants Democrats to keep pushing forward on investigations.
Congress’s inherent contempt power, explained
Congress technically has another option that gives it much more power to prosecute noncompliant individuals, called inherent contempt power. But the lawmakers probably won’t use it.
The contempt of Congress citation the House will vote on next week is very different from inherent contempt power: Congress’s ability to arrest or jail people who don’t comply with subpoena requests.
As Garvey explained in his summary, this is how Congress used to make sure people complied with its subpoena requests if they refused, beginning in the 1850s and ending in the 1930s. Congress can do this (the Supreme Court has upheld its ability to do so), but it hasn’t since the 1930s because, well, throwing people in jail is a bit harsh:
Upon adopting a House or Senate resolution authorizing the execution of an arrest warrant by that chamber’s Sergeant-at-Arms, the individual alleged to have engaged in contemptuous conduct is taken into custody and brought before the House or Senate. A hearing or “trial” follows in which allegations are heard and defenses raised.
If judged guilty, the House or Senate may then direct that the witness be detained or imprisoned until the obstruction to the exercise of legislative power is removed.
As Garvey writes, Congress detaining these people isn’t meant to be a punishment so much as an added incentive to produce the information more quickly.
Lately, some Democrats have been talking about it as a way to put some more teeth into their subpoena requests.
“We have the power to detain and incarcerate,” Rep. Gerry Connolly (D-VA), a member of the House Oversight Committee, told reporters last month. “We don’t use it. … Doesn’t mean we can’t, and I’m all for reviving it.”
When asked where Congress would put members of the Trump administration, Connolly pointed to DC’s jail.
“We have, as you know, jurisdiction over the District of Columbia,” he said. “And they have a beautiful jail with plenty of room. So I think that would be just perfect for some of these people to contemplate their actions and judgment.”
To be clear, there’s no real indication that Democrats are ready to revive their inherent contempt power for Barr and McGahn, and it likely would be a tool of last resort. The attorney general is likely not headed to jail, especially if the department he oversees is in charge of deciding whether to prosecute him. What matters now is Democrats deciding to pursue a court case against the attorney general and former White House counsel, and if a judge holds them in contempt of court instead.
Passing a contempt of Congress citation is just the first step.