House Democrats on Thursday blew up their hearing with Attorney General William Barr, turning it into a spectacle with an empty chair after he declined to attend over their insistence that staff lawyers question him.
But the real fight with Barr for House Judiciary Chairman Jerry Nadler isn’t over the attorney general’s testimony — it’s over obtaining the unredacted report from special counsel Robert Mueller.
The line Nadler drew Thursday appeared to be an arbitrary one – the committee is full of members who are lawyers, and congressional aides almost never ask questions in hearings – but the chairman’s insistence was part of a broader struggle that Democrats say they’re fighting with the Justice Department and the Trump White House, according to lawmakers and aides.
“You don’t have to be an expert in the executive branch of government to discern the pattern here. They’re not cooperating with anything,” said Rep. Jamie Raskin, a Maryland Democrat on the Judiciary Committee. “The pattern is one of absolute defiance of the lawmaking branch of government, and we can’t accept that.”
Democrats said they were not about to let the Justice Department dictate the terms of their hearing when their subpoenas are being ignored, witnesses aren’t testifying, the Justice Department won’t turn over the full Mueller report and the Treasury Department won’t provide the President’s tax returns. They were willing to risk Barr not showing before they would agree to change the hearing format at the Justice Department’s request.
At a closed-door meeting of members this week, Democrats discussed their way forward, and Nadler and his staff signaled that they were going to play the long game in dealing with their dispute with the Justice Department, according to a member in the room. Democrats say that if they were to give in on the issue, it would be a slippery slope to losing ground in their other fights.
President Donald Trump’s flat-out refusal to cooperate with their investigations has Democrats considering all options in response, from trying to fine or jail those who defy subpoenas to taking another look at whether Trump’s obstruction amounts to an impeachable offense.
“The failure of Attorney General Barr to come to the hearing today is simply another step in the administration’s growing attack on American democracy, and its attack on the right of Congress to be a coordinate branch of government,” Nadler said after Thursday’s hearing. “The administration by its policy of across-the-board defiance of congressional subpoenas is saying that only the executive matters, that we don’t need, we don’t want, limitations by Congress.”
At the same time, Democrats’ anger toward Barr and his handling of the Mueller report played a role in the standoff with the Justice Department. One reason Democrats demanded a 30-minute block of questioning from lawyers was because they felt Barr had a history of lacking candor as a congressional witness, according to one Democratic aide.
While some Democrats wanted the chance to question Barr on Thursday, his testimony was secondary to their effort to pry the unredacted Mueller report and the special counsel’s evidence from the Justice Department, as well as to get Mueller in front of their committee to testify, Democrats say. Nadler is now threatening to hold Barr in contempt over refusing to provide the unredacted Mueller report, saying he will make one more “good-faith attempt” to negotiate before moving forward.
Responding to subpoena defiance
Of course, it’s not clear what effect holding Barr in contempt would have. Republicans took the step against President Barack Obama’s attorney general, Eric Holder, over the gun-walking investigation known as “Fast and Furious,” but they still had to go to court in a years-long fight to obtain the documents they were seeking.
“Ultimately I think he was able to ignore it for the most part and I don’t think (it) had any significant ramifications,” Rep. Steve Chabot, Republican of Ohio, said of Holder. “It ought to mean something but it’s thrown so much on Capitol Hill nowadays it probably doesn’t mean as much as it ought to.”
Several House Democrats are now talking about invoking so-called “inherent contempt,” a legal argument that Congress has the ability to fine or jail those who defy a congressional subpoena outside of the court system. But it’s a process that hasn’t been used since 1935 and would likely be challenged in court.
Congressional aides acknowledge that the steps Democrats have taken are likely to ultimately be considered by a judge deciding whether to enforce the subpoena for the full Mueller report. The same is true in other committees where Trump has sued to block subpoenas, and the House Ways and Means Committee’s efforts to obtain his tax returns.
Anger rises toward Barr
But the fight between Barr and the Judiciary Committee has gotten particularly heated, as Democrats have been furious with his handling of the Mueller report. His responses at Wednesday’s Senate hearing, coupled with his skipping Thursday’s House appearance, have only fueled additional calls for his resignation.
Rep. Sylvia Garcia, a Texas Democrat on the Judiciary panel, said she considered Barr’s response as “essentially” to “shoot the finger at us.”
Republicans slammed Nadler over the fight with Barr, accusing him of creating a circus atmosphere at Thursday’s hearing in an attempt to make it look like Democrats are running an impeachment proceeding.
“My chairman wants to actually let the American people believe, by citing impeachment against the President, that we are actually doing impeachment. When in reality, they don’t want to bring impeachment,” said Rep. Doug Collins of Georgia, the top Republican on the Judiciary panel.
Democrats say they haven’t given up on having Barr eventually testify, but they are more concerned with getting a different witness in front of their panel: Mueller himself. Nadler said that Mueller could appear on May 15, although the hearing had yet to be finalized.
“We do still need to hear from Mr. Barr, although I think less and less every day about the contents of the report,” said Rep. Madeleine Dean, a Pennsylvania Democrat. “Barr can’t tell us how to run our committee, but we have to keep going. Obviously, we want honest brokers of information, so the most important person to have is the author of the report.”