A looming House vote to hold Attorney General William Barr in contempt of Congress is unlikely to result in punishment, recent history shows, but could ultimately help Democrats gain access to the information they are seeking.
Both parties have voted to hold high-ranking, executive branch officials in contempt over the past two decades for refusing to testify or turn over subpoenaed material, among them President George W. Bush’s chief of staff, Josh Bolten, and President Barack Obama’s attorney general, Eric Holder.
But little has come of criminal contempt votes, and none of the top officials lawmakers targeted were prosecuted.
“Efforts to punish an executive branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most, circumstances,” the Congressional Research Service, which provides analyses exclusively to Congress, concluded in 2017.
House Judiciary Committee Chairman Jerry Nadler, D-N.Y., announced Monday the panel will convene Wednesday to vote on whether to hold Barr in contempt of Congress for refusing to turn over to lawmakers the unredacted version of special counsel Robert Mueller’s report on Russian interference in the 2016 election. Nadler subpoenaed Barr for the report last week.
“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,” Nadler said.
Republicans on the panel, who will vote against citing Barr for contempt, say Barr is following the law, which prohibits him from releasing parts of the report that include classified information or grand jury testimony.
But the panel is led by Democrats, who are all but guaranteed to vote to cite Barr with contempt if a deal with the Department of Justice is not negotiated by Wednesday.
Without an accord, the House could then take up the contempt citation and would likely pass it, sending the matter to court, where it is likely to sit for months.
While Barr is unlikely to face criminal consequences, a contempt vote could help Democrats gain at least some of the information they are seeking if they pass a resolution to pursue civil enforcement in court, history shows.
On June 28, 2012, the GOP-led House passed two contempt resolutions against Holder for refusing to turn over documents related to the Justice Department’s botched “Fast and Furious” gun-running operation.
The criminal citation was sent to the Department of Justice, which, based on precedent, told then-Speaker John Boehner, R-Ohio, that Holder’s refusal to cooperate with the subpoena was not a crime and declined to take the case to a grand jury.
Republicans then filed a civil enforcement action with the U.S. District Court for the District of Columbia. The case dragged on for months, but the court ultimately forced the DOJ to turn over some of the requested “Fast and Furious” materials months later.
Bolten was also cleared of criminal wrongdoing by the Justice Department after House Democrats voted to find him and Bush senior adviser Harriet Miers in contempt of Congress on Valentine’s Day in 2008.
Both Miers and Bolton refused to testify or provide documents relating to the Bush administration’s decision to fire nine U.S. attorneys in a move Democrats suspected was political.
The DOJ told House Democrats neither Bolten nor Miers could be criminally charged for contempt for invoking executive privilege on behalf of the president.
But Democrats filed civil charges that, nearly two years later, yielded “much of the information it had been seeking,” plus closed-door testimony from Miers, according to the CRS.
Democrats are set to meet Wednesday to decide whether to hold Barr in contempt and more charges against other administration officials could follow.
On Tuesday, President Trump set up another potential battle with the House by refusing to allow his former White House counsel Don McGahn to appear before the Judiciary panel, which has issued a subpoena for his testimony.
Judiciary Democrats want to ask McGahn about possible efforts by Trump to obstruct Mueller’s investigation into Russian interference during the 2016 election.
White House officials have signaled they may assert executive privilege to block McGahn from testifying, which would make it difficult for a contempt charge to stick.
