WASHINGTON — High-profile Congressional hearings have a way of degenerating into unruly spectacle, with members using their five minutes to grandstand for cable news instead of asking detailed questions on the topic at hand.
That may be just how Attorney General William Barr likes it.
Barr is threatening to bail on his scheduled appearance Thursday to discuss Special Counsel Robert Mueller’s final report after House Democrats proposed a format that would differ from typical hearings.
Democrats want both parties to appoint a lawyer to lead uninterrupted, half-hour blocks of questions, which they hope will lead to a substantive inquiry instead of partisan bickering. Barr, on the other hand, wants a standard hearing where House members launch the questions. Unsurprisingly, neither side appears willing to budge.
"The attorney general agreed to appear before Congress. Therefore, members of Congress should be the ones doing the questioning,” Department of Justice spokesperson Kerri Kupec told VICE News in an emailed statement. “He remains happy to engage with members on their questions regarding the Mueller report.”
House Judiciary chairman Rep. Jerrold Nadler, meanwhile, has said he may subpoena Barr if the AG refuses to appear on Thursday.
The latest tiff between Barr and Nadler comes less than a week after President Trump vowed to fight “all” Congressional subpoenas, and threatens to deepen an already ugly standoff between House Democrats and the DOJ over witnesses, documents, and evidence related to the Mueller report.
But there’s a lot riding on Barr’s testimony before Congress. The AG has been heavily criticized by Democrats who accuse him of spinning the Mueller report and brazenly mischaracterizing its findings. Barr’s reluctance is already amplifying the charge that the White House is stonewalling Congress — a dynamic The Washington Post reported Tuesday is fueling private talk in the House about the possibility of opening impeachment proceedings against Trump.
On the flip side, House Dems need to be careful not to overplay their hand. If Barr pulls out, his appearance may get postponed by weeks or months while Democrats launch a subpoena battle against the Department of Justice they are ill-equipped to win, former Hill staffers and legal experts told VICE News.
Barr on the Hill
Speaking to reporters Monday evening, Nadler said Barr seems “very afraid” of concentrated questioning by a staffer in the wake of accusations that the AG has already been playing fast and loose with the truth about Mueller’s findings.
Democrats have accused Barr of spinning the Mueller report to Trump’s benefit, and of acting more like Trump’s defense attorney than the nation’s top law enforcement official in dismissing the report’s voluminous evidence that Trump did indeed obstruct justice with only vague legal reasoning.
They’ve also accused him of fundamentally misrepresenting Mueller’s findings before the report was released, in particular when Barr suggested Mueller didn’t rely on the DOJ policy that a sitting president can’t be indicted. In fact, Mueller invoked that rule on the first page of the obstruction section of his report.
Hours after the report dropped, Nadler pointed to these inconsistencies and announced: “We clearly can’t believe what Attorney General Barr tells us.”
Barr has fended off questions by saying he’d appear before Congress to answer everything once the document was made public. And he’s also scheduled to appear before the Senate Judiciary Committee this Wednesday.
But when the House Judiciary Committee tried to revamp the format, Barr informed them that he might not show up at all.
Bad format = bar hearing
When it comes to really getting answers out of witnesses, the experts say Nadler has a point: The standard setup has a lot of shortcomings.
“Witnesses who aren’t inclined to answer questions can filibuster, particularly trained lawyers know how to use the clock to their advantage,” said Justin Levitt, former Deputy Assistant Attorney General and now professor of Constitutional law at Loyola Law School.
“The format of questioning, with the five-minute rule, is terrible.”
“The format of questioning, with the five-minute rule, is terrible,” said Michael Stern, who served as senior counsel to the House of Representatives from 1996 to 2004. “It’s disjointed. Members are often unprepared, or they end up reading a question prepared by staff without knowing how to follow up.”
Allowing a trained attorney to take over for a dedicated half hour of grilling would change the format considerably, Stern said.
“It’s one thing to spar with a member of the committee for five minutes,” Stern said. “It’s another thing for the counsel to be essentially cross-examining you.”
Dedicated counsel are more commonly used during closed deposition-style hearings with fact witnesses, although they have at times been used in public hearings before. In a notable recent case, Republicans on the Senate Judiciary Committee called in a career prosecutor to question Christine Blasey Ford, who had accused Supreme Court Justice Brett Kavanaugh of sexual misconduct as a teenager.
But Congressional Republicans argue the move is unnecessarily aggressive and constitutes unsuitable treatment for a sitting Cabinet member who has already released a mostly complete copy of the Mueller report, despite not actually being required to do so by any law or regulation.
A House Republican aide who asked not to be identified, pointed out that Barr’s appearance is voluntary, and dismissed the Democrats’ demands as “abusive and illogical” in light of Barr’s offer both to testify and to reveal further still-redacted portions of the report to members of Congress.
And Democrats have to be careful not to burn their big chance to grill Barr.
“I would certainly hope they’d be able to work it out in some way short of having a constitutional clash about this.”
If they push too hard, they risk pushing him out of reach, for the near future at least — with little recourse to force his return on their terms.
Legal experts point out that Congress has little real power to enforce subpoenas against the executive branch, given that it must rely on criminal referrals to the very DOJ run by the executive branch, which can simply opt not to enforce them. And filing a civil complaint could take months to resolve, easily stretching beyond the end of Trump’s first term.
“The committee could subpoena him, but then you get into all those difficult issues,” said Stern. “I would certainly hope they’d be able to work it out in some way short of having a constitutional clash about this.”
Cover: Attorney General William Barr speaks about the release of a redacted version of special counsel Robert Mueller's report during a news conference, Thursday, April 18, 2019, at the Department of Justice in Washington. (AP Photo/Patrick Semansky)