The Executive Branch Escalates Its Clash With Congress

The last few days have seen a whiplash-worthy series of actions between Congress and the executive branch, with battles over subpoenas, threats of contempt and even cries of constitutional crisis. These events may seem bewildering to a casual observer of this dysfunctional relationship. So it’s worth slowing down, rewinding the tape, and taking a look at how the two branches got to this point.

On May 8, the Judiciary Committee of the House of Representatives voted 24-16 to recommend a resolution to the full House that would hold Attorney General William Barr in contempt of Congress for failing to comply with a subpoena issued by Chairman Jerrold Nadler. The subpoena, issued on April 19, directed the attorney general to produce to the committee by May 1 an unredacted copy of the Mueller report as well as “all documents obtained and investigative materials created by the special counsel’s office.” The vote followed six hours of debate that included, among other things, discussion of the status of the committee’s efforts to obtain grand jury material protected by Section 6(e) of the Federal Rules of Criminal Procedure.

Shortly before the scheduled meeting to consider the contempt resolution, Assistant Attorney General Stephen Boyd sent a letter to Nadler indicating that “the President has exerted executive privilege over the entirety of the subpoenaed materials.” This expansive assertion of executive privilege was described as a “protective assertion of executive privilege” designed to “ensure the President’s ability to make a final decision whether to assert privilege following a full review of these materials.” The letter cites a 1996 Department of Justice memorandum by Attorney General Janet Reno as precedent for the move.

Viewed in proper context, these events are not surprising. Nadler sought to negotiate with the Justice Department regarding access to the full unredacted Mueller report and underlying documents beginning in February. Only a public threat of a contempt citation for the attorney general this week produced any sign of willingness on the department’s behalf to negotiate with the committee—and even then, the administration’s offer was anemic. This approach is consistent with the overt, across-the-board approach this administration is taking toward congressional oversight generally, as is the president’s broad “protective” assertion of executive privilege over the unredacted Mueller report and underlying materials. In such circumstances, Nadler’s decision to move forward with a vote in committee on contempt is also not surprising. At this point, neither side is in a particularly cooperative state of mind.

The question going forward will be whether the administration chooses to negotiate with the committee over access to some portion of the redactions and underlying materials or else pursue its current stonewalling strategy to the hilt. The first approach likely means a long, drawn-out political battle over access to particular documents. The latter approach would likely end up in a long, drawn-out court battle. Either outcome would seem to fit well with President Trump’s political strategy for dealing with oversight by House Democrats in the run-up to the 2020 elections—fight everything and don’t back down. But they do not bode particularly well for the future of Congress’s ability to serve as a check on the presidency.

Committee Vote on Contempt

On April 18, Special Counsel Robert Mueller delivered his report on Russian efforts to influence the 2016 election, related actions by the Trump campaign, and the president’s efforts to obstruct Mueller’s investigation. The Justice Department redacted four types of information from the report: (1) grand jury material prohibited from public disclosure under Federal Rule of Criminal Procedure 6(e); (2) classified information that implicates the sources and methods of the intelligence community; (3) information that is sensitive based on other ongoing law enforcement matters; and (4) information that would “unduly infringe” on the “personal privacy and reputational interests of peripheral third parties.” The underlying investigative materials were also not made available to the committee.

Long before the delivery of the report however, on Feb. 22, 2019, Nadler began signalling to the Department of Justice his expectation that the department would disclose the Mueller report “to the maximum extent permitted by law.” On March 14, the House of Representatives voted 420 to zero in favor of a resolution calling for “the public release of any report … except to the extent the public disclosure of any portion thereof is expressly prohibited by law” and for “the full release to Congress of any report, including findings, Special Counsel Mueller provides to the Attorney General.”

When the Mueller report was provided to Congress, the Justice Department offered access to three of the four categories of redacted portions of the report—all but the grand jury material—to 12 members of Congress (six Republicans and six Democrats) including the chairman and ranking member of the judiciary committee. Under the rules set by the department, these select members are permitted to take notes but not take their notes with them. The six Democrats balked because the arrangement does not allow other members to see the redacted material, and effectively precludes members from talking to other members about what is in the redacted portions of the report. Nadler issued a subpoena to Barr for the full report and all underlying materials the next day with a deadline of May 1. On May 2, Barr declined to appear for a scheduled hearing before the committee.

Why does Nadler want the redacted portions of the Mueller report and the underlying materials? The committee’s vote comes in the broader context of its investigation into alleged obstruction of justice, public corruption, and other abuses of power by Trump, his associates, and members of his administration. The committee’s report states that the redacted version of the Mueller report “presents grave concerns about the susceptibility of the nation’s democratic institutions to foreign disinformation campaigns and the vulnerability of our election infrastructure.” The report on the resolution states that the redacted Mueller report

does not provide sufficient details for the Committee to perform its own constitutional duty and engage in a thorough independent investigation based on the Mueller Report’s findings. It is imperative that the Committee have access to all of the facts contained in the full Mueller Report, to the evidentiary and investigatory materials cited in the Mueller Report, and to other materials produced and collected by the Special Counsel’s office. Access to these materials is essential to the Committee’s ability to effectively investigate possible misconduct, and consider appropriate legislative, oversight, or other constitutionally warranted responses.

Nadler sent letters to Barr requesting to negotiate ways to meet the committee’s needs and explaining his views in correspondence sent on March 25, April 1, April 11, April 19 and May 3. In the May 3 letter, Nadler indicated a willingness to prioritize a defined set of underlying documents for immediate production—witness interview notes (so-called “302s”) referenced in the Mueller report. Nadler also stated his willingness to negotiate ways to limit and prioritize the broad request for the underlying materials and asked Barr to make a good faith effort to comply with the subpoena the morning of May 6.

On May 6, having received no response from Barr, Nadler issued a public notice of a meeting to mark up a contempt resolution on Wednesday, May 8. After the notification of the markup, the department proposed a meeting to try to negotiate “an acceptable accommodation” of the committee’s requests. The department’s offer was, by any measure, anemic—to allow each member who had already been granted access the report to bring in an additional staff member to view the unredacted report. Nadler rejected that offer as insufficient. The Justice Department thereafter notified Nadler in a letter that “the President has exerted executive privilege over the entirety of the subpoenaed materials,” in a “protective assertion of executive privilege” to ensure the president’s ability to make a final decision whether to assert privilege following a full review of the materials.

In the meeting, Nadler indicated that hoping for movement from informal negotiations, in the absence of a serious move like a contempt citation, was like “beating a dead horse” because of a lack of meaningful responses from the Department of Justice since February. He entered into the record a timeline of the entreaties to the department that yielded no meaningful accommodations and also expressed his view that “the subpoena is written as the beginning of a dialogue process” with the attorney general and Department of Justice. Republicans in committee criticized this statement, arguing that the serious nature of a subpoena and contempt citation means the chairman had jumped the gun and that, instead, negotiations should continue.

In a normal Presidential administration, this prudent way of thinking may be apt. But the reality is this is not a normal Presidential Administration when it comes to Congressional oversight. As I wrote on Lawfare in March, the Trump White House has been refusing, across the board, to comply with requests for information and documents from multiple House committees in connection with multiple oversight investigations. According to information provided by two senior administration officials, the Washington Post reported that the White House has refused to share documents requested in multiple oversight inquiries and is “intent on challenging most, if not all, House Democrats’ document requests.” To put an even finer point on it, on April 24 Trump himself told reporters, “We’re fighting all of the subpoenas.”

Viewed in this broader context, the committee’s contempt vote seems neither precipitous nor unwarranted. Of course, whether it is ultimately helpful in getting the committee access to what it seeks is a different question.

“Protective” Assertion of Executive Privilege

The president’s “protective” assertion of executive privilege in the face of a contempt vote is not without precedent. President Clinton’s 1996 protective assertion of executive privilege is cited in the Justice Department’s letter to Nadler. As Jonathan Shaub ably explains on Lawfare, the president’s action is not a conclusive assertion of executive privilege. Rather, he has asserted executive privilege in order to be able to determine whether to assert executive privilege. While some categories of redacted material in the report and underlying materials may fall within traditional conceptions of executive privilege—like classified information—grand jury material is not considered to be covered by executive privilege and neither are the “privacy” interests of individuals.

As Shaub explains, a formal executive privilege claim would require scrutiny of the precise documents and information withheld to determine whether such material fits within a component of executive privilege and whether Congress’s need for the information is sufficiently weighty to overcome the privilege. Clinton’s 1996 protective assertion of executive privilege was followed, two weeks later, by a determination that the particular documents at issue fell within the scope of executive privilege.

So one question going forward is whether the Trump administration will actually undertake a review of the materials and decide to make any of them available to the committee. As Shaub points out, one can imagine the administration not undertaking such a review and continuing to stonewall. Such an approach would be unprecedented but consistent with the across-the-board stonewalling of House Democratic oversight that the president has indicated he favors. The outcome would likely be a swifter contempt vote in the full House and the commencement of litigation by the committee in district court.

Status of the Committee’s Attempt to Access 6(e) Grand Jury Material

Yesterday’s committee markup was also an informative moment for those tracking the committee’s efforts to gain access to material protected from public disclosure pursuant to Section 6(e) of the Federal Rules of Criminal Procedure.

Under Section 6(e), certain people involved in a grand jury proceeding “must not disclose a matter occurring before the grand jury” unless one of the exceptions outlined in the statute applies. As Mikhaila Fogel and I wrote on Lawfare shortly before the release of the Mueller report, there is historical precedent for the House judiciary committee receiving such information—most famously during Watergate. But an intervening case issued by the U.S. Court of Appeals for the D.C. Circuit on April 5 may make it considerably more difficult for the judiciary committees to receive it. If the House judiciary committee wants to have even a chance of reviewing the redacted 6(e) material, it would either have to convince Barr to make arguments to that effect to the court that oversaw the Mueller grand jury proceedings or else petition the court directly. Such litigation would take time, and the outcome is uncertain—especially if Barr decides to oppose the release to the committee.

In yesterday’s committee markup, Republicans repeatedly accused Nadler of forcing Barr into a Catch-22 of having to either break the law and release the 6(e) material in order to comply with the committee’s broad subpoena, or keep the material protected and fail to comply with the subpoena. Barr had stated in a hearing in early April that he did not intend to seek the court’s permission to release the 6(e) material to the committee. At yesterday’s mark-up, Nadler clarified that he had been requesting for some time that the department join the committee in seeking a court order to allow the department to turn over the grand jury material under the exceptions laid out in 6(e), including the “judicial proceeding” exception. An amendment to the contempt resolution offered by Republican Rep. Matt Gaetz in committee, and supported by Nadler and the rest of the committee, clarified that the attorney general was never expected to break the law in complying with the subpoena.

It seems Nadler had intended the subpoena to put pressure on Barr to accede to the committee’s request to join a request to the court to release the materials—not to force Barr to break the law. Nadler indicated during the markup that he intended to pursue direct action with the court regardless of whether Barr joins the committee’s efforts, but had hoped to obtain Barr’s support before going it alone. A unified position among the executive and legislative branches would likely lead to a better outcome for the committee.

Meanwhile, action elsewhere in the House yesterday added another twist to the 6(e) saga. House intelligence committee Chairman Adam Schiff issued a subpoena to the Justice Department with a May 15 deadline for the unredacted version of the Mueller report, as well as all of the foreign intelligence and counterintelligence information collected during the investigation. The subpoena followed two unrequited letters from that committee to the Justice Department—sent with the support of the committee’s Ranking Member Devin Nunes—requesting the materials.

The letter accompanying the subpoena points to a different exception in 6(e) that could be the basis for Barr to release information—without a court order. Footnote 2 of the letter points to Section 6(e)(3)(D), which allows the Justice Department to disclose certain types of information “to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties.” This information can include any grand-jury matter involving foreign intelligence, counterintelligence or foreign intelligence information; any grand jury matter involving grave hostile acts of a foreign power, a threat of domestic or international sabotage or terrorism, or clandestine intelligence activities by an intelligence service or network of a foreign power.

It remains to be seen whether the department agrees with the intelligence committee’s interpretation of this exception and hands over the materials.

Next Steps

Technically, the next step for the judiciary committee’s contempt resolution is a full vote in the House on the resolution and to authorize legal proceedings. Before that happens, it is possible that a more meaningful negotiation between the executive and legislative branches will occur. Barr may not relish the idea of being held in contempt of Congress, and there are likely a host of the underlying materials from the Mueller investigation that are not protected by executive privilege and could be turned over to the committee. For the committee’s part, Nadler likely recognizes that proceeding quickly to a civil contempt proceeding in district court may not produce the sought-after materials within any meaningful timeframe. How this particular fight between the branches proceeds could be a harbinger of how the rest of the disputes on other topics play out. As Nadler said in his statement the day of the markup of the contempt resolution: “Our fight is not just about the Mueller Report—although we must have access to the Mueller report. Our fight is about defending the rights of Congress, as an independent branch, to hold the President accountable.”