WASHINGTON — The House Judiciary Committee voted 24–16 Wednesday to hold Attorney General Bill Barr in contempt for refusing to turn over an unredacted copy of special counsel Robert Mueller’s final report as well as Mueller’s investigative files.
The vote is the first step — the resolution will go before the full House next. If Democrats want to sue Barr and the Justice Department to enforce their subpoena, they’ll have to specifically vote to do so, regardless of the final outcome of the contempt proceedings.
On Wednesday morning, before the vote, the Justice Department sent a letter notifying the committee that President Donald Trump had asserted executive privilege over all of the information — Mueller’s unredacted report and millions of pages of underlying evidence from the investigation — covered by the subpoena.
It is the first time Trump has invoked executive privilege to shield information from Congress. It’s not the final word from the president on this information, though. The Justice Department said it was a broad, “protective” assertion of privilege to stop the records from being disclosed while the White House does a “full review.” There is precedent for this kind of move. In a letter to Trump on Wednesday, Barr cited a 1996 legal opinion from then–attorney general Janet Reno concluding that then-president Bill Clinton could assert "protective" privilege over a set of White House–counsel documents in the face of a congressional subpoena and contempt vote while the White House did a complete review.
"Faced with Chairman [Jerry] Nadler’s blatant abuse of power, and at the Attorney General’s request, the President has no other option than to make a protective assertion of executive privilege," White House press secretary Sarah Huckabee Sanders said in a statement.
Speaking to reporters after the vote, Nadler said, "We've talked for a long time about approaching a constitutional crisis. We are now in it." Making a reference to Ben Franklin and the founding of the country, Nadler said the US is in a "time of testing whether we can keep a republic or whether this republic is destined to change into a different, more tyrannical form of government as other republics have over the centuries."
Impeaching Trump "may not be the best answer," Nadler said, but he decried overreach by the president. "We must resist this. This is far broader than Republican or Democratic or even the rights of Congress. This is whether we can put limits on the power of the president — any president — and hold the president, any president, accountable. We cannot flinch," he said.
Ranking Republican Rep. Doug Collins of Georgia said the contempt motion was due to sour grapes among Democrats because the Mueller report did not find that the Trump administration colluded with Russia during the 2016 election. Collins said that Democrats did not get grounds to impeach Trump, and “as a result, they’re angry.”
During the hearing, Democratic Rep. Hank Johnson, also of Georgia, broached the subject of impeaching Trump, in a break with House Speaker Nancy Pelosi, who has repeatedly quashed impeachment speculation. Johnson said that Congress has constitutional responsibilities to engage in. “One of which is possibly impeachment,” he said. “How can we impeach without getting the documents? So we must get this document.”
The committee's subpoena had demanded that Barr produce the full Mueller report and other records related to the investigation by May 1. The House Judiciary Committee issued the subpoena April 18, the day Barr publicly released a redacted version of the report. Barr offered members of Congress the opportunity to read a less redacted version in private, but Democrats largely rejected the offer and demanded to see the full document.
One of the Justice Department's objections to the subpoena is that federal law prohibits the disclosure of grand jury information, which was one of the categories of redactions in the report. The subpoena doesn't exclude grand jury material, but Nadler clarified during Wednesday's hearing that Democrats weren't demanding information that would require breaking the law, and the committee adopted an amendment to that effect.
In a statement after Wednesday's contempt vote, Justice Department spokesperson Kerri Kupec said it was "deeply disappointing that elected representatives of the American people have chosen to engage in such inappropriate political theatrics."
"Regrettably, Chairman Nadler’s actions have prematurely terminated the accommodation process and forced the President to assert executive privilege to preserve the status quo. No one, including Chairman Nadler and his Committee, will force the Department of Justice to break the law," Kupec said.
A BuzzFeed News review of the public version of Mueller’s 448-page report showed that approximately a third of the pages had a redaction, and most were in the first volume, which focused on the Russian government’s efforts to interfere in the 2016 election. The redactions ranged from a single word to an entire page. According to the Justice Department, members of Congress were allowed to see 98.5% of the report, including 99.9% of the second volume, which dealt with the investigation into whether Trump had obstructed justice.
Wednesday’s vote comes after the Justice Department and committee Democrats spent several days exchanging sternly worded letters and statements. On May 1 — the day the documents were due under the subpoena — the head of DOJ’s Office of Legislative Affairs, Stephen Boyd, wrote to Nadler that the department would not produce them. Boyd wrote that Democrats had failed to provide a “legitimate legislative purpose” in digging into investigative files, and that the department by law could not reveal grand jury information in the report.
Committee Democrats and Justice Department officials met Tuesday to negotiate in advance of Wednesday’s vote, but those efforts failed. Nadler released a statement saying the Justice Department had “abruptly” announced in the middle of talks that it planned to ask Trump to invoke executive privilege to shield the documents. Boyd wrote a letter saying the committee had added to its demands for access to information in a way that would risk violating court orders and compromising ongoing investigations.
“Such unreasonable demands, together with the Committee’s precipitous threat to hold the Attorney General in contempt, are a transparent attempt to short-circuit the constitutionally mandated accommodation process and provoke an unnecessary conflict between our respective branches of government,“ Boyd wrote.
If the full House ultimately votes to find Barr in contempt, it would be the ninth time that’s happened since 1978, according to congressional records. Barr would be the fifth executive branch official and second US attorney general found in contempt during that time; the Republican-led House voted to hold then–attorney general Eric Holder Jr. in contempt in 2012.
The House doesn’t need to formally vote to hold a government official or private citizen in contempt in order to take them to court, but members do have to vote to authorize legal action. In 2016, for instance, the Senate voted to approve a civil lawsuit to enforce a subpoena for documents from Carl Ferrer, who was the CEO of Backpage.com.
Congress can also refer cases to the US attorney’s office in Washington, DC, for consideration, but those rarely lead to criminal charges. Only one person in the past 40 years has been indicted and gone to prison after being held in contempt of Congress — former Environmental Protection Agency official Rita Lavelle — and she wasn’t actually convicted of that crime.
In April 1983, the House voted 413–0 to hold Lavelle in contempt for refusing to comply with a subpoena to testify about the EPA’s efforts to clean up hazardous-waste sites. Congress referred her case to the US attorney’s office, and a grand jury indicted her a month later. In addition to contempt of Congress, Lavelle was charged with perjury and interfering with congressional investigations. She pleaded not guilty and went to trial. The jury found her guilty of the perjury and impeding charges but acquitted her of the contempt count.
Lavelle’s former boss at the EPA, Anne Gorsuch, was found in contempt of Congress twice. (Her son is Supreme Court Justice Neil Gorsuch.)