William Barr uses Eric Holder’s defense against Congress
As Attorney General William Barr works to fend off an aggressive Congress demanding more information, he has turned to a surprising source for justification: former Obama official Eric H. Holder Jr., who seven years ago found himself in much the same position.
Mr. Holder’s justification for thwarting the House then under Republican control was the first piece of evidence Mr. Barr used last week in his letter letting House Democrats know he would not meet their deadline for complying with a subpoena.
At issue is the unredacted copy of special counsel Robert Mueller’s report on the 2016 election.
Democrats want both the report and reams of supporting evidence Mr. Mueller compiled during his 22 months of investigation. Mr. Barr says he is willing to negotiate but that some of the information the parts Mr. Mueller gleaned from a grand jury are shielded by law and can’t be turned over without breaking that law.
“The department must ensure that it may continue to conduct law enforcement investigations free of outside interference, particularly in high-profile cases that receive intense public scrutiny,” Assistant Attorney General Stephen E. Boyd wrote in a letter to House Judiciary Committee Chairman Jerrold Nadler last week citing Mr. Holder. “To that end, the department has long resisted congressional attempts to rummage through its investigative files.”
The matter could come to a head Monday morning.
That is the new deadline given by Mr. Nadler, New York Democrat, though he has softened his demands by narrowing the scope of documents he wants to see.
“But if the department persists in its baseless refusal to comply with a validly issued subpoena, the committee will move to contempt proceedings and seek further legal recourse,” Mr. Nadler wrote.
It’s not clear how Mr. Barr will respond, but the White House said Mr. Nadler had no choice but to water down his demands.
“It is astonishing to me that not a single Democrat has yet to go read the less-redacted version of the report, yet they keep asking for more,” Sarah Huckabee Sanders, Mr. Trump’s spokeswoman, told reporters after the chairman’s concessions.
Should Mr. Nadler be unsatisfied and pursue a contempt citation, Mr. Barr would be only the second attorney general who has faced such ignominy.
The first was Mr. Holder, who found himself on the wrong side of a congressional vote in 2012 after he thwarted an investigation into the Fast and Furious gun operation, in which federal agents allowed guns to be sold to traffickers. The weapons began turning up at crime scenes, including the ambush death of U.S. Border Patrol Agent Brian Terry.
The Republican-led House Oversight and Government Reform Committee demanded documents about the administration’s public relations strategy, but Mr. Holder balked. President Obama belatedly claimed executive privilege, and the House voted 255-67 to hold Mr. Holder in criminal contempt of Congress. It then voted 258-95 to pursue a civil judgment ordering Mr. Holder to comply.
As per usual practice, the Justice Department refused to pursue the criminal contempt against the administration and in this case its own chief.
The House went to courts to try to obtain a declaration to enforce the demand for documents.
House Republicans won the first round in court, when a judge ruled they could bring their case. A later decision was more nuanced, upholding the president’s right to shield some information by executive privilege but ordering Mr. Holder to be more precise in what documents could be shielded.
By then, years had elapsed.
The Trump Justice Department last week, in refusing to meet Mr. Nadler’s original deadline for the unredacted Mueller report, cited Mr. Holder’s 2012 legal opinion justifying the withholding of Fast and Furious documents.
A spokesman for Mr. Holder didn’t respond to questions about the current administration’s tactic to name-check his boss.
The Justice Department’s letter last week also cited former Attorney General Michael Mukasey, who battled House Speaker Nancy Pelosi, California Democrat, over contempt citations in 2008, and former Attorney General Robert Jackson, a legal legend who defended President Franklin D. Roosevelt against House demands in the 1940s.
Yet it was Mr. Holder’s 2012 argument that led the Justice Department defense.
Legal analysts are divided on whether the Holder defense will work for Mr. Barr.
Josh Chafetz, a professor at Cornell Law School, said one problem for Mr. Barr is that his fight comes amid a broader defiant stance by Mr. Trump.
Beyond the special counsel documents, the administration and the White House specifically have sued to block access to the president’s finances, have signaled opposition to a demand for Mr. Trump’s tax returns, and have balked at allowing top former officials such as White House attorney Donald McGahn to testify before Congress.
On Sunday, Mr. Trump said he doesn’t want Mr. Mueller to be allowed to testify, challenging Mr. Barr, who said several times that he had no problem with a congressional inquiry of the special counsel.
When Mr. Holder was held in contempt, the administration objected to some specific demands for information, “but even as those particular subpoena battles were the subject of intense controversy, the vast majority of oversight work continued normally,” Mr. Chafetz said.
Mr. Holder was fighting over executive privilege, which Mr. Chafetz said “has its basis in interpretations of the Constitution.”
“Barr is relying on a provision of the Federal Rules of Criminal Procedure dealing with grand jury secrecy this is a much lower level of authority, and it’s hard to see why it would take precedence over Congress’ constitutional authority to conduct oversight,” Mr. Chafetz said.
Yet Michael W. McConnell, a former federal appeals court judge and now director of the Stanford Constitutional Law Center, said Mr. Barr’s argument appears to be stronger than Mr. Holder’s. For one, he said, the grand jury secrecy protection Mr. Barr cites is part of federal law, while Mr. Holder was trying to expand a presidential protection to cover lower-level Justice Department communications.
“Holder had not a leg to stand on, whereas Barr gave solid legal reasons for his decisions,” Mr. McConnell said.
Indeed, the federal appeals court in Washington issued a ruling last month that appears to put grand jury information beyond the reach of Congress in the normal course of oversight.
That could be a major hurdle for any lawsuit.
“If this House goes that route, it’s by no means clear the court even has jurisdiction. But if the court finds jurisdiction, the idea that the court’s going to find Barr violated the law by not revealing grand jury information is preposterous,” Mr. McConnell said.
He viewed Democrats’ battle with Mr. Barr as an effort to undercut the attorney general’s credibility as he begins to probe deeper into the 2016 election and Clinton campaign and Obama administration decisions.
Mr. Chafetz said if Democrats do try to challenge the president by going to court, then it will be a drawn-out affair.
“Trump is basically trying to drag out all of these investigations as long as possible, and if House Democrats choose litigation as their primary means of combating him, he’ll almost certainly succeed,” he said.
Still, he said, other options are available to Mr. Nadler and fellow Democrats such as holding hearings to embarrass the administration or using Congress’ power over spending to try to make Mr. Trump more compliant.