By withholding the complete, non-redacted Mueller report, witnesses called by Democrats testify to the House Judiciary Committee that Attorney General William Barr was well within his rights, and the law.
During a hearing on Wednesday, Rep. Kelly Armstrong, R-N.D., asked the Democrats’ witnesses if Barr was required by law to hand over the entirety of special counsel Robert Mueller’s report on the Russian collusion hoax, or if he was protected by law.
Kate Shaw, a law professor at Yeshiva University, admitted the law “protects grand jury material,” and that she agreed he would have broke the law if he handed over the complete unreacted report.
Armstrong then asked Paul Rosenzweig, a senior fellow at R Street Institute’s National Security & Cybersecurity team, who agreed Barr was within his rights, but added that “nothing in the statute prevents him from asking permission from a court to provide that material.”
However, Rosenzweig admitted that a congressional subpoena does not require Barr to go to a court to obtain that kind of permission.
Democrats on the House Judiciary Committee have moved to hold Barr in contempt of Congress for refusing to produce the full, unredacted report from Mueller.
“The Attorney General’s failure to comply with our subpoena, after extensive accommodation efforts, leaves us no choice but to initiate contempt proceedings in order to enforce the subpoena and access the full, unredacted report,” House Judiciary Chairman Jerrold Nadler, D-New York, said in a statement Monday.
But as the Democratic witnesses stated, Barr violated no law and had every right to refuse Congress’s subpoena.
Barr has tried to work with the Democrats, inviting committee staff to the Justice Department “to discuss a mutually acceptable accommodation” that provides lawmakers with the greatest access to the Muller report.
Democrats, however, said this isn’t enough.
“Since first communicating its need to obtain this information, the Committee has acknowledged the Attorney General’s legal and policy concerns regarding release of these materials and has sought to negotiate an accommodation acceptable to both the Attorney General and the Committee,” the committee wrote in its report.
“Nevertheless, Attorney General Barr failed to comply with the Committee’s request for these documents and thereby has hindered the Committee’s constitutional, oversight, and legislative functions.”
Finally, Armstrong addressed Georgia State University law professor Neil Kinkopf. “Professor Kinkopf, do you agree with that?”
Kinkopf answered with a terse, “Sure.”
Following the committee vote to hold Barr in contempt, a DOJ spokesperson pointed out that Barr had made “extraordinary efforts to provide Congress with information related to Mueller’s report, however the attorney general was not going to break the law.
The Attorney General could not comply with the House Judiciary Committee’s subpoena without violating the law, court rules, and court orders, and without threatening the independence of the Department’s prosecutorial functions.”
Nadler and all the other Democrats who voted to hold Barr in contempt should all be questioned under oath just as the three expert witnesses were questioned by Armstrong. They will be forced to tell the truth. Yes, if the Attorney General had complied with our subpoena, he would have violated the law.
The House Judiciary Committee last week took the first step toward holding Mr. Barr in contempt for defying a congressional subpoena demanding special counsel Robert Mueller’s “full unredacted” report along with all the supporting evidence. Republicans say he even rejected an amendment that sought to carve grand jury information out of the subpoena, issued in March.
But Mr. Nadler now says he “never intended” to force Mr. Barr to release confidential grand jury information, which under federal law is severely restricted in how it can be released.
Republicans were left wondering what the last six weeks’ worth of fighting was about, and legal experts were left wondering whether Mr. Nadler’s case will hold up in court, should he try to ask a judge to enforce his demands.
“The court would be curious as to why the subpoena appears broader than the current position of the House Judiciary Committee,” said Jonathan Turley, a law professor at George Washington University.
Mr. Turley said if Mr. Nadler did not want the attorney general to release the grand jury information, the subpoena would have explicitly stated so.
“There seems to be a disconnect between the language of the subpoena and prior statements of the committee and what was most recently stated by Chairman Nadler,” he said. “Usually subpoenas are quite specific what they are seeking.”
Mr. Nadler told The Washington Times he didn’t need to carve out an exception for grand jury materials.
“The subpoena doesn’t have to say it,” he said. “That’s a nonsense argument and a red herring that the Republicans are raising.”
Grand jury testimony, often called “6E” information because of the section of federal criminal procedure rules that governs it, is usually shielded from disclosure — though there’s a debate about the exceptions to that one.
One clear exception is impeachment, but Democrats are reluctant to take the political heat that would follow from announcing impeachment proceedings.
Another option is to ask the court to unseal the information. There are new questions, raised by an appeals court ruling last month, whether that would be possible — but Mr. Nadler says he wants to explore it.
“The intent of the subpoena always was, and we’ve always stated that we would go to the court and ask for the grand jury information and we would ask the attorney general to accompany us to court, which in every previous situation he has done,” he continued. “This time, he said he wouldn’t do that. He’s given no reason for that, by the way. It is essential that we get this information.”
One Republican on the committee, Rep. Jim Jordan of Ohio, said that simply wasn’t true.
“I think everyone on the committee was under the belief that the subpoena was for everything because that’s what they said,” he told The Times. “And we’ve always said that we want the report released consistent with the law and that’s exactly what Bill Barr did.”
The Justice Department has already signaled it is willing to let lawmakers look at the other information shielded from the public for reasons of privacy, ongoing investigations and classification.
Ross Garber, who teaches political investigations and impeachment at Tulane University School of Law, said he didn’t see any issues with the way Mr. Nadler wrote his subpoena.
“It is not unusual for a subpoena to be issued and have that be broader than what you ultimately expect to be complied with and for there then to be negotiations,” he said.
Rep. Jamie Raskin, Maryland Democrat and member of the House Judiciary Committee, says there’s other evidence that Democrats didn’t want to break the grand jury seal a 420-0 vote the entire House took in March urging Mr. Barr to release as much of the report as possible.