WASHINGTON — Attorney General Bill Barr's last-minute decision to pull out of a hearing set for Thursday before the House Judiciary Committee was the latest escalation of a simmering interbranch showdown that's been building since Democrats took control of the House this year.
In every administration, there are fights between the executive branch and Congress over how much power the latter has to get information from the former. In some cases, the third branch — the judiciary — is asked to step in.
What has made the past few months unusual, however, is the sheer number of fights that have broken out across multiple fronts. And they aren't just between Congress and executive branch officials and agencies, which is the more typical scenario. They're also between Congress and President Donald Trump individually, given Democrats' interest in probing his business dealings — and that dynamic is less tested in the courts.
Each of these confrontations on their own would be notable, but expected, when different political parties occupy the White House and at least one chamber of Congress. Taken together, they represent the beginning of a long political and legal slog that's only likely to get worse and more dramatic with a president comfortable blowing up institutional norms and a political establishment digging in with an eye to the 2020 election.
Trump has now vowed to fight "all the subpoenas" from the House, and officials have declined invitations to voluntarily testify. In late April, the White House said it wouldn't allow senior White House adviser Stephen Miller to testify about the administration's immigration policy, and is gearing up for fights over subpoenas to current and former officials, including former White House counsel Don McGahn, a key witness in Mueller's investigation. One former White House official, Carl Kline, last month refused to show up for a hearing about how the administration handled security clearances after the White House counsel's office told him not to testify, prompting calls for a contempt vote.
Trump has also personally gone on the offensive, filing two lawsuits challenging subpoenas for financial records from his accountant and two financial institutions that do business with him, the Trump Organization, and his family.
Severals hours after Barr testified before the Senate Judiciary Committee on Wednesday about special counsel Robert Mueller's report, the Justice Department announced Barr wouldn't attend a hearing on the same subject before the House set for Thursday. The reason, according to the DOJ, was disagreement over the format — Jerry Nadler, the House Judiciary Committee chair, planned to let staff attorneys question Barr, and the DOJ called his conditions "unprecedented and unnecessary." There was also the matter of the DOJ announcing late Wednesday that they wouldn't comply with a subpoena from Nadler for an unredacted copy of Mueller's report and records from the probe.
The rhetoric only got more heated. Following the revelation this week that Barr didn't disclose a letter he got from Mueller in March (which expressed concern about how Barr was handling the end of the investigation), Democrats accused him of lying to Congress in hearings in April. Speaker Nancy Pelosi on Thursday morning tweeted, "Attorney General Barr’s decision to mislead the public in his testimony to Congress was not a technicality — it was a crime."
The conclusion of special counsel Robert Mueller's investigation provides a high-stakes battleground for the Trump administration to spar with House Democrats, but the breakdown in relations started much earlier. In January, for instance, Health and Human Services Secretary Alex Azar and Treasury Secretary Steven Mnuchin each turned down requests to testify before House committee — Azar about family separations at the US–Mexico border, and Mnuchin about the partial government shutdown. Both departments said government experts would be better suited for the hearings.
Josh Chafetz, a law professor at Cornell Law School and an expert in congressional authority, said that while there have been fights between Congress and the executive branch over information since the early days of the republic, this is different. Under previous administrations, presidents would refuse to turn over specific information for specific reasons, but other areas of congressional oversight would continue as usual.
“This is about whether Congress gets to oversee the executive branch at all.”
"The Trump administration obviously is doing something very different, saying 'no' across the board. That is new," Chafetz said. "The earlier fights were all about why some certain piece of information was privileged, and this is about whether Congress gets to oversee the executive branch at all."
The fights between the Trump administration and Congress so far haven't been about executive privilege, although that may be coming. In a letter explaining the Trump administration's decision to not allow Stephen Miller to testify, White House counsel Pat Cipollone cited what he described as "long-standing precedent" for the White House to decline to make officials available to Congress. The Justice Department's statement on Barr's refusal to testify before the House Judiciary Committee was about objections to process, and it said producing Mueller's files would undermine the integrity of law enforcement investigations and that it couldn't, by law, disclose grand jury information in Mueller's report. Trump's lawsuits against financial institutions are about third-party financial records.
Trump had a relatively conflict-free relationship with Congress during his first two years in office when Republicans controlled both chambers. There was the occasional break in ranks in the Senate over Trump's controversial judicial nominees, and Republicans struggled at times to score major legislative wins, but for the most part Republicans leaders served as a shield, refusing Democrats' demands for documents and testimony from the White House and federal agencies.
After winning control of the House in November, Democrats pledged to use their new majority status, and the subpoena power that came with it, to delve into the inner workings of the Trump administration as well as Trump's business affairs.
Democrats have several tools to enforce their subpoena power. They can vote to hold someone in contempt (they can do that even if there isn't a subpoena, but it's less common); file a civil lawsuit; make a criminal referral to the Justice Department (contempt of Congress is a misdemeanor); order the sergeant-at-arms to arrest a defiant official; or use their power over agency budgets to force compliance.
Democrats have repeatedly threatened to start contempt proceedings, but haven't so far.
The most likely route for Democrats seeking to enforce their subpoenas is through contempt votes and lawsuits — criminal referrals tend to go nowhere, and Chafetz said there have only been two instances in US history when the House ordered the sergeant-at-arms to arrest an executive branch official. But he noted that if these cases end up in court, it could take months, or even years, to resolve.
"That is going to be a loser for House Democrats even if they win, because that takes forever," he said.
The Trump administration is by no means the first to block officials from testifying in Congress or fight subpoena for documents. Congressional clashes with the executive branch dating to the 19th century have shaped the legal precedent and congressional rules in force today.
Under former president Barack Obama, then–attorney general Eric Holder refused to turn over documents related to the investigation of a botched sting operation known as Operation Fast and Furious, citing executive privilege. The House, which was controlled by Republicans at the time, found him in contempt, sued the Justice Department, and made a criminal referral. The US attorney's office in DC did not press charges, but the lawsuit is still pending as the Justice Department negotiates a settlement with House Democrats.
In 2014, the House found Obama-era IRS official Lois Lerner in contempt after she invoked her Fifth Amendment right to not incriminate herself during a hearing before the House Oversight Committee; the House made a criminal referral, but the Justice Department declined to press charges. The Obama administration also refused to allow then–White House official David Simas to testify before a House committee, arguing Simas was immune from being compelled to testify about his official duties. Darrell Issa, then the House Oversight Committee chair, considered going forward with contempt proceedings, but didn't.
Under president George W. Bush, the White House repeatedly invoked executive privilege during Congress's investigation into the firing of several US attorneys. The administration not only refused to comply with a congressional subpoena for documents sent to then–White House chief of staff Joshua Bolten, but wouldn't allow key former White House officials, including former White House counsel Harriet Miers, to testify. The House, which was controlled by Democrats, found both in contempt and made referrals to the Justice Department, which declined to take action.
The House also filed a civil lawsuit over the Miers and Bolten subpoenas. A judge ruled in July 2008 that senior presidential advisers didn't have blanket immunity from being compelled to comply, but could claim executive privilege in response to specific questions. The case went up to the US Court of Appeals for the DC Circuit, but was settled after Obama took office, so the appeals court never issued a decision that would be binding on the district court going forward.
The Bush administration initially refused to allow then–national security adviser Condoleezza Rice to testify before the independent commission investigating the 9/11 attacks, citing executive privilege, but later decided to allow it.
UPDATE
This story was updated to clarify that the House has twice ordered the sergeant-at-arms to arrest an executive branch official; there have been numerous arrests of private citizens.