William Barr and Congress’ broken contempt power

Last month, the House Judiciary Committee voted to recommend that the House hold Attorney General William Barr in contempt of Congress. The 24-16 decision was made along partisan lines. The vote came 19 days after Congress demanded Barr deliver to members an unredacted copy of the Mueller report — which he refused to do.

That the committee’s Democrats held Barr in contempt is unsurprising. Last month, Barr held a news conference that spun the Mueller report favorably toward President Donald Trump, who drives the left crazy. Subsequently, the attorney general ticked off Democrats further by haggling over if and when he would appear before Congress. When he did show up, he tossed gas on the flames by dismissing Robert Mueller’s complaint about the presser as “snitty” and generally refusing to kowtow to the left side of the dais. And, of course, he initially defied the committee subpoena to release the unredacted Mueller report, arguing among other things that it would be illegal to share privileged grand jury information.

How this all will play out is anyone’s guess. The committee’s vote comes with no consequence for Barr beyond marking his reputation. For the left, the contempt vote is a scarlet letter; for much of the right, it is a badge of honor. It came from Chairman Jerry Nadler, D-N.Y., who last year — long before the Mueller report was released — was reportedly overheard on the Acela train talking about how Dems were going to impeach both Trump and Supreme Court Justice Brett Kavanaugh once they took control of the House.

Officially, the committee vote recommended that the whole House of Representatives hold Barr in contempt. This means that a resolution needs to be drafted, introduced, and referred to the Rules Committee, which will decide whether the resolution will be debated on the floor. Speaker Nancy Pelosi, D-Calif. — who was particularly vexed by Barr’s appearance before the House and accused him of lying — has indicated that she will schedule the vote. But exactly when that will happen has not been announced — it is possible that this action is being delayed as Democrats consider whether to include other Trump officials in the contempt proceedings.

Democrats hold 235 of the chamber’s 425 seats — a solid majority. Nearly all can be expected to vote “yea” on the Barr contempt resolution.

Contempt of Congress, as the nonpartisan Congressional Research Service points out, is a tool little used in the modern era. Since 1980, only four individuals have been found in contempt.

The contempt resolution is not especially effective, either. Congress last used it in 2012 against then-Attorney General Eric Holder for refusing to turn over documents relating to the Fast and Furious gun-running debacle. The charge against Holder was dropped by a judge in 2014. Holder paid no price and remains an éminence grise in Democratic politics — earlier this year, he tested the waters for a presidential run. Indeed, William Barr seems little worried; he jokingly asked Speaker Pelosi if she had handcuffs for him.

Congress’ contempt problem, in short, is a separation of powers one.  Once the House votes affirmatively, the process moves to another branch of government. If the House seeks a criminal prosecution, it refers the matter to the Department of Justice — yes, the same Department of Justice that Barr heads. When Congress held an Environmental Protection Agency administrator in contempt of Congress in the 1980s, DOJ’s Office of Legal Counsel declared it was not obligated to present the matter before a grand jury. In short, game over, Congress.

The House of Representatives could also attempt to enforce the resolution via civil suit. This avoids the bother of having to rely on DOJ but requires help from the third branch, which tends to take a very long time to reach a decision. When Congress pursued two contempt cases during the George W. Bush Administration, the legal wrangling took two years. No verdict was rendered, as Congress and the executive branch cut a deal to settle the matter. Seven years later, the Holder contempt proceeding has still not concluded.

Congress could use its inherent contempt authority to escape this intra-branch conundrum. The House would order the chamber’s sergeant-at-arms to arrest an individual charged with contempt. Afterward, the charges would be presented, a trial would be scheduled and then a vote to decide guilt would take place. Punishment in the form of fines could be meted out. This sort of proceeding has not been attempted in decades, not least because it consumes a ton of the House’s valuable floor time. And using inherent contempt against an administration official like an attorney general is exceedingly high-stakes — what if the sergeant-at-arms is rebuffed by DOJ’s police?

Like so many aspects of the First Branch, its contempt power is broken. Fixing it would require updating the ancient, mothballed inherent contempt processes to ensure that the proceedings are fair and expeditious. The House could do this on its authority — no executive or judicial branch assent is needed. But that would take time, and the House instead seems to want to try to extract the full Mueller report through the power of the purse and other authorities.

All of which means that the House Judiciary Committee’s vote against Attorney General Barr is mostly Sturm und Drang. Absent a leak, we will not being seeing the full Mueller report anytime soon.

(This post appeared previously in the Ripon Forum.)