WASHINGTON—Democratic leaders are threatening Attorney General William Barr and other Trump administration officials with subpoenas, contempt citations, and possible jail time for refusing to testify before House committees.
The threats mark a complete reversal from their stance in 2012, when Eric Holder, then-President Barack Obama’s self-described “wingman,” was the nation’s chief law enforcement officer.
Hours after the House Judiciary Committee voted on May 1 to allow the panel’s majority and minority counsels to question Barr for an hour, the attorney general canceled his scheduled May 2 testimony.
Barr contends that only senators and representatives should question congressional witnesses, a view he repeatedly stated during negotiations with panel Democrats.
Barr previously had offered voluntarily to testify before the House panel concerning his role in making available to Congress and the public special counsel Robert Mueller’s report on allegations that President Donald Trump and campaign aides colluded with Russians in 2016 and then obstructed justice in seeking to conceal their actions.
Rep. Jerry Nadler (D-N.Y.), who chairs the House Judiciary panel, has threatened to issue a subpoena directing Barr to appear, after the attorney general was a no-show on May 2.
Barr’s decision not to appear sparked a fiery reaction from Speaker of the House Nancy Pelosi (D-Calif.), telling reporters at her weekly news conference on May 2: “He lied to Congress, he lied to Congress. If anybody else did that, it would be considered a crime. Nobody is above the law. Not the president of the United States, and not the attorney general.“
Asked by a reporter if she believes Barr should be imprisoned, Pelosi replied, “There is a process for that, and as I said, I’ll say it again, the committee will act upon how we will proceed.”
Pelosi was referring to Barr telling a House committee in April that he wasn’t aware of Mueller’s criticism of the attorney general’s description of the report to Congress, when, in fact, he had previously received a letter with objections from the special counsel.
Kerri Kupec, Barr’s chief spokesperson, called Pelosi’s comments “baseless … reckless, irresponsible, and false.”
Late on May 1, after learning Barr wouldn’t be testifying, Nadler claimed the attorney general is “trying to blackmail the committee into not following the most effective means of eliciting the information we need. He is terrified of having to face a skilled attorney.”
Barr is serving his second term as attorney general, having been nominated by then-President George H.W. Bush and confirmed by the Senate unanimously for the post in 1991, when Democrats controlled the chamber.
‘Unprecedented and Unnecessary’
In response to Nadler, Kupec released a statement saying: “[The] Attorney General testified before the Senate Judiciary Committee for over five hours. The Attorney General also voluntarily released the Special Counsel’s confidential report with minimal redactions to Congress and the public, made an even-less redacted report available to Chairman Nadler and congressional leadership (which they have refused to review), and made himself available to the committee by volunteering to testify this week.
“Unfortunately, even after the Attorney General volunteered to testify, Chairman Nadler placed conditions on the House Judiciary Committee hearing that are unprecedented and unnecessary.”
Kupec also noted that most of the judicial panel’s members, including Nadler, are attorneys who are capable of cross-examining witnesses such as Barr.
“The Attorney General remains happy to engage directly with members on their questions regarding the report and looks forward to continue working with the committee on their oversight requests,” said Kupec.
The attorney general spent most of May 1 answering questions about the report before the Senate Judiciary Committee, in a hearing marked in part by the open contempt for Barr displayed by Sens. Mazie Hirono (D-Hawaii) and Kamala Harris (D-Calif.).
At another point during the tense hearing, Barr told Sen. Richard Blumenthal (D-Conn.), who had questioned the attorney general’s credibility, that “we have to stop using the criminal justice process as a political weapon.”
The Democrats’ threats reportedly came in closed meetings April 30 and May 1, during which Nadler, House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.), and House Select Committee on Intelligence Chairman Adam Schiff (D-Calif.) cited “inherent contempt,” an obscure, seldom-used constitutional power of Congress.
Under inherent contempt, both the Senate and the House of Representatives have the authority as an implied legislative prerogative under the Constitution and independent of the executive branch to impose fines, as well as to arrest and jail individuals who defy subpoenas to testify or produce evidence.
The process requires a majority vote of either chamber directing the sergeant-at-arms to order the U.S. Capitol Police to locate, arrest, and detain the individual, who can then be held in confinement until he or she complies with the subpoena.
The confinement must end, however, with the expiration of the Congress during which the subpoena was issued, thus limiting such jail time to less than two years at the maximum.
For many years, the U.S. Capitol building included a jail cell, but nobody has been imprisoned under inherent contempt by Congress since the 1930s, according to the Congressional Research Service.
It isn’t clear where a detained individual would be held in the present Capitol complex. The individual would also be able to file a writ of habeas corpus with a federal court seeking release.
“There is no tool in our toolbox that we should not explore,” Cummings said, concerning the use of inherent contempt, according to Roll Call.
But Cummings had a very different view in 2012, when the then-Republican majority in the House voted to hold Holder in contempt for refusing to allow documents requested in a congressional investigation to be given to Congress.
“Holding someone in contempt of Congress is one of the most serious and formal actions our Committee can take, and it should not be used as a political tool to generate press as part of an election-year witch hunt against the Obama administration,” Cummings said in an April 27, 2012, letter to Rep. Darrell Issa (R-Calif.), then-Oversight Committee chairman, protesting the leaking to the news media of a 48-page draft contempt citation.
Two months later, the House voted 255–67 to hold Holder in contempt for refusing to turn over Justice Department documents to Congress, including internal emails, concerning the Operation Fast and Furious scandal in which federal officials allowed guns to be sold to known Mexican drug cartel associates.
The idea was that the guns would show up later at crime scenes, thus making it easier to identify suspects. But the program became controversial after a U.S. Border Patrol agent was shot and killed with one of the weapons.
Cummings and Schiff were among 108 Democrats who left the House chamber in protest and refused to vote on the contempt motion. Nadler remained in the chamber and voted against the motion.
The last occasion when the exercise of the inherent contempt powers became a subject of public debate was in 2014, when the House voted to hold former Internal Revenue Service senior executive Lois Lerner in contempt after she refused to answer questions before Issa’s committee.
That debate ended abruptly, however, when then-Speaker of the House John Boehner decided to forgo the inherent contempt powers.
“I’m not sure we want to go down that path,” Boehner said during a Fox Business interview, adding—incorrectly according to the Congressional Research Service—that “it’s never been used” and admitting that he was “not sure that it’s an appropriate way to go about this.”
Lerner was at the center of the federal tax agency’s targeting of conservative, evangelical, and Tea Party applicants seeking tax-exemption. These groups faced inordinate delays in processing their requests during the 2010 and 2012 election campaigns.
In 2008, when the Democrats previously held the majority in the House, two officials working for then-President George W. Bush were voted to be in contempt of Congress.