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WASHINGTON — House Democrats will need a miracle to actually get America’s top law enforcement official, Attorney General William Barr, charged with a crime.
But they’re so mad about Barr’s controversial handling of the Mueller report that they’re gearing up to give it the old college try.
The House Judiciary Committee voted Wednesday to approve placing Barr in contempt of Congress for refusing to hand over the full, unredacted Mueller report. Now it’s on to the full House to take up the vote. The rare step follows accusations that Barr spun Mueller’s findings and lied to Congress — a move that could, at least in theory, land Barr in jail for up to a year.
The vote marks the latest blow in an escalating brawl between the White House and Congress, and came just hours after President Trump announced his decision to block all the unredacted portions of the Mueller report and underlying materials. Trump has vowed to fight “all” congressional subpoenas, in what legal experts have called an extraordinary act with little-known precedent.
But if Democrats want to respond with any meaningful force, they’ll likely have to get creative. Their most direct option for enforcing the contempt citation involves asking Barr’s own Department of Justice to indict him — a request that’s sure to get shelved. As such, Democrats say they’re looking at alternative options to make themselves heard.
“We don’t consider this a game of hide and go seek,” Rep. Jamie Raskin, a Democrat from Maryland and House Judiciary Committee member, told VICE News. “The attorney general must comply with the law.”
The vote Wednesday by the House Judiciary Committee begins the process of placing Barr in contempt of Congress and tees up a vote in the full House later this month.
Now, if the full House approves the contempt citation, they’ll still have to decide how to actually enforce it. And unfortunately for them, all three conventional options come with significant drawbacks.
- Criminal contempt. The House can try to have Barr charged with criminal contempt of Congress, a misdemeanor punishable by up to a year in prison. Historically, past presidents, including Barack Obama and George W. Bush, have had their Justice Departments simply ignore that kind of outreach.
- Civil contempt. Alternatively, the House could sue in civil court, and ask a judge to enforce the citation. But such a gambit might take years to play out, lasting easily beyond the end of Trump’s first term.
- Inherent contempt. This is where things could get very, very weird. Theoretically, the House could send its own Sergeant-at-Arms out to arrest someone for defying a Congressional subpoena, and throw the offender in prison. But that trick hasn’t been pulled since the 1930s, and it’s broadly seen as highly unlikely to get a revival now.
Raskin suggested Democrats might begin by filing a civil suit, despite warnings that approach could take a while. At least some legal experts think it could move along more quickly.
Jill Wine-Banks, a former member of the Watergate prosecution team, pointed out that despite Nixon’s invocation of executive privilege in 1974, the Supreme Court took only three months to slap him down and grant a subpoena for the tapes to be released.
“My own experience suggests it could move a lot faster than some people think,” Wine-Banks told VICE News.
Jailing the sheriff
Raskin agreed that a lawsuit looks like the best immediate option, but insisted that all Congressional powers should be considered — including inherent contempt, even if that presents the surreal vision of Congress becoming its own judge and jailer for defiant members of the Trump administration.
“One would hope that being held in contempt of Congress would be enough for the Attorney General just to do his civic and legal duty,” Raskin said. “If it’s not, we’re going to court. And if that doesn’t work, we will explore whatever means are available to us to get compliance.”
Raskin pointed out that Congress’s inherent contempt power was upheld by the Supreme Court in 1821. In 1927, the Senate sent its deputy Sergeant-at-Arms to arrest the brother of the then-Attorney General in Ohio, in a case stemming from the Teapot Dome scandal. In that instance, the high court ruled the move fully legit.
“I think the full panoply of our powers needs to be on the table,” Raskin said.
House Speaker Nancy Pelosi appeared to dismiss the possibility of locking up members of the Trump administration with a wisecrack on Wednesday morning, joking that the Capitol building lacks enough prison space for the entire Trump cabinet.
“Normally, you’d expect political pressure to adhere to historic constitutional provisions would have some kind of impact. But this president seems to be immune to those pressures.”
“Well let me just say, we do have a little jail down in the basement of the Capitol,” Pelosi said to laughter at a Washington Post Live event. “But if we were arresting all of the people in the administration, we’d have an overcrowded jail situation, and I’m not for that.”
Yet while the odds of Congress actually jailing the Attorney General are seen by many Congressional experts as remote, the Trump administration’s broad-brush decision to fighting all Congressional subpoenas has little, if any, historical precedent, a fact that has prompted discussion about whether extreme measures might be necessary in response.
“Normally, you’d expect political pressure to adhere to historic constitutional provisions would have some kind of impact,” said Richard Arenberg, who spent 34 years on Capitol Hill as a Senate staffer. “But this president seems to be immune to those pressures.”
The White House is also fighting Democratic attempts to review Trump’s tax returns, and to hear testimony from former White House Counsel, Don McGahn. The White House has also balked at having a former security official named Carl Kline testify about the procedures for handing out dubious security clearances.
Democrats may indeed want to challenge the Trump administration in all of these cases, but they probably have to pick their battles, said Michael Stern, who was senior counsel to the House of Representatives from 1996 to 2004.
“It’s difficult to take dozens of cases to court,” Stern said. “They don’t really have the staff for that, frankly.”
Cover: Attorney General nominee Bill Barr arrives for a meeting with Sen. Josh Hawley, R-Mo., a member of the Senate Judiciary Committee, in Hawley's office, Tuesday, Jan. 29, 2019, in Washington. (AP Photo/Andrew Harnik)