By Jon Dougherty
It should be obvious by now that the House Democratic majority isn’t at all interested in helping the GOP-controlled Senate or the Executive Branch find solutions to our country’s problems and be part of a governing solution, as evidenced by the Judiciary Committee’s vote today to hold Attorney General William Barr in “contempt of Congress” for refusing to turn over the full report from special counsel Robert Mueller.
The president gave Barr a lot of political cover earlier today when he claimed executive privilege in refusing to allow the AG to turn over an unredacted version of the report.
No doubt the full Democrat-controlled House will vote to hold Barr in contempt, setting up what will become a lengthy court fight in which House Democrats will lose because — and this is as simple as it gets — Barr is prevented by law from releasing the entire Mueller report due to the fact that it contains grand jury testimony.
“The American people see through [House Judiciary Committee] Chairman [Jerrold] Nadler’s desperate ploy to distract from the President’s historically successful agenda and our booming economy,” White House Press Secretary Sarah Huckabee Sanders said in a statement.
“Neither the White House nor Attorney General Barr will comply with Chairman Nadler’s unlawful and reckless demands.
“The Attorney General has been transparent and accommodating throughout this process, including by releasing the no-collusion, no-conspiracy, no-obstruction Mueller Report to the public and offering to testify before the Committee,” Sanders added. “These attempts to work with the Committee have been flatly rejected. They didn’t like the results of the report, and now they want a redo.
“Faced with Chairman Nadler’s blatant abuse of power, at the Attorney General’s request, the President has no other option than to make a protective assertion of executive privilege.”
The term “unlawful” has meaning, and Nadler and House Democrats know it.
As The Washington Examiner‘s Susan Ferrechio reported, Trump asserting executive privilege defends Barr from a contempt finding. The Department of Justice tends to reject prosecuting criminal contempt cases when executive privilege is invoked.
There’s more. The only way Congress can get secret grand jury testimony is to impeach the president, per a recent report from the Congressional Research Service:
One long-established principle that has been deemed essential to the grand jury’s functioning and independence is that matters occurring before it are to be kept secret. Secrecy prevents those under scrutiny from fleeing or importuning the grand jurors, encourages full disclosure by witnesses, and protects the innocent from unwarranted prosecution. For these and other reasons, prosecutors, the jurors themselves, and most others involved in grand jury proceedings are generally prohibited from revealing “such matters as the identities or addresses of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.” The prohibition endures even after a grand jury’s work is completed.
There are exceptions, under Federal Rules of Criminal Procedure 6(e), the CRS notes:
…[The rule] establishes exceptions that allow grand jury materials (such as transcripts of witness testimony) to be disclosed to certain outside parties in limited circumstances. Some of these exceptions allow for automatic disclosure—to necessary government personnel, for example—but many of the exceptions require that disclosure be authorized by the federal district court in the jurisdiction where the jury is convened, as the court ultimately has some degree of “supervisory authority” over the grand jury…
The court, in this case, is the D.C. Circuit — and it has already ruled “that federal courts lack ‘inherent authority’ to authorize the disclosure of grand jury matters in circumstances not covered by an explicit exception set out in Rule 6(e) of the Federal Rules of Criminal Procedure,” the CRS stated in April.
“It thus appears that, for the time being, the panel’s decision has closed off one potential avenue for Congress to obtain grand jury material in federal court in the District of Columbia (though the decision could always be reheard en banc or overturned by the Supreme Court),” the report continued.
Impeachment is one potential exception:
That said, as the McKeever decision notes, Congress previously was successful in obtaining grand jury materials pursuant to the Rule 6(e) exception for disclosure “preliminarily to or in connection with a judicial proceeding” on the theory that an authorized impeachment inquiry is preliminary to such a proceeding. That avenue appears to remain available to Congress after McKeever.
We’ll see if Democrats have the sand to begin impeachment proceedings against POTUS, where a) the Senate won’t convict him; and b) Americans will turn out in droves next year to reelect him.
- Follow Jon Dougherty on Twitter at @JonDougherty10