House Democrats are threatening to hold attorney general William Barr in contempt of Congress. They are acting prematurely and irresponsibly.
The supposed grounds for a contempt citation are two. First, Barr has defied a House subpoena ordering him to give Congress an entirely unredacted version of special counsel Robert Mueller’s report about Russian interference into the 2016 election. Second, he refused to testify to the House Judiciary Committee on Thursday because the committee planned to have staff counsel question him in a process similar to the Watergate hearings of 1974.
House Democrats aren’t even in the right on the underlying disputes, much less on the idea that the impasses have reached a point in which a contempt citation should be imminent. Specifically, the House request for the unredacted report is understandable but, for now, misguided. Worse, the committee’s insistence on interview-by-staff-attorney is a cheap stunt.
[Read more: Democrat eats fried chicken at hearing to mock no-show William Barr]
The request for the wholly unredacted report to be made available to all of Congress, rather than to only certain, select leaders, is misguided because the redactions are legitimate and the risk of leaks from Congress too great. Nobody seriously has suggested the minor redactions in this report are hiding anything that ought to be public. Congress has yet to hear Mueller himself testify, to ask if he, as the author, believes the Barr-directed redactions were proper.
The extremely serious step of holding the attorney general of the United States in contempt should be a last resort. Instead, it has become the first shot fired in what ought to be a negotiated process between two coequal branches of government. To hold Barr in contempt for not immediately publicizing legitimately redacted material, without so much as a conversation, would be a gross violation of norms and of the spirit of the Constitution’s structure and intent.
The same applies to the idea of a contempt citation merely for Barr’s refusal to kowtow to the exact parameters of the committee’s intended inquisition. Barr is a Cabinet member. Congress justly has oversight over executive branch actions, but heads of major executive departments are not Congress’ playthings. The committee so far has merely requested Barr’s presence, but Barr has declined while citing copious precedent as to why a top Cabinet member might object to being publicly questioned by a staffer.
The committee has not even issued a subpoena yet for Barr himself to testify. Unless and until Barr fails to comply with a valid subpoena, it is ludicrous for a contempt citation even to be considered. The committee’s obvious intent is to invoke the visuals of Watergate, rather than to acquire information the members themselves could not acquire by their own questions. Even if and when a subpoena is issued, a Cabinet member has every right to negotiate the terms and means of compliance. If he agrees to appear before Congress and to answer the questions of members as duly elected representatives of a coequal branch of government, but refuses to be queried in public by a mere staff attorney, Congress would be on dubious grounds in citing him for contempt.
Granted, if there is an official impeachment inquiry, then the committee hearing becomes the equivalent of a court proceeding, in which counsel leading the questioning is more appropriate. Absent an impeachment proceeding, though, Congress is merely performing oversight, and a Cabinet member has good reason not to submit to the impertinence of staff-counsel questioning.
Barr’s views on executive authority may be outlandish, and his demeanor may be seen by some as obnoxious. Neither flaw, though, amounts to criminally chargeable contempt. If House Democrats insist otherwise, they deserve to be treated — not in a legal sense, but in the vernacular — quite contemptuously.
