Nadler wants the full Mueller report. What happens if Barr says no?

Why We Wrote This

Congressional subpoenas are serious business – but enforcing them isn’t so easy. If the executive branch resists, it becomes a matter for the courts, where it can drag on for years. 

J. Scott Applewhite/AP
House Judiciary Committee Chair Jerrold Nadler, D-N.Y., (left) is preparing subpoenas seeking special counsel Robert Mueller's full Russia report.

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On Wednesday, the House Judiciary Committee voted along party lines to give its chairman, Rep. Jerry Nadler, D-N.Y., authority to issue subpoenas for documents, testimony, and underlying evidence related to special counsel Robert Mueller’s investigation of the Trump campaign and Russia. Mr. Mueller found no collusion between the two, and in a summary of the report, Attorney General William Barr said that he and the deputy attorney general found that evidence was not sufficient to support a finding of presidential obstruction of justice.

Mr. Nadler and his fellow Democrats want to see the report for themselves – hence the subpoenas and court threat. Yet this seemingly tough stance belies a weakness in the supposedly mighty congressional subpoena: Enforcement, if it goes to court, can take years. Another kind of weakness, say legal and government experts, stems from the perception that subpoenas are increasingly more about partisan positioning than finding the truth.

“It’s become increasingly routine for congressional committees to pound their chest and use the subpoena,” says Prof. Neal Devins, a constitutional scholar at William and Mary Law School in Williamsburg, Virginia. “When you do something repeatedly, it becomes a little ritualistic, it loses a little of its oomph.”

By the time the Justice Department hands over the full Mueller report to House Democrats – if it ever does – Donald Trump may no longer be president. In other words, get ready for a long tangle if this fight goes to court, as seems to be the intent of the House Judiciary chairman if he doesn’t get his way.

On Wednesday, the House Judiciary Committee voted along party lines to give its chairman, Rep. Jerry Nadler, D-N.Y., authority to issue subpoenas for documents, testimony, and underlying evidence related to special counsel Robert Mueller’s investigation of the Trump campaign and Russia. Mr. Mueller found no collusion between the two, and in a summary of the report, Attorney General William Barr said that he and the deputy attorney general found that evidence was not sufficient to support a finding of presidential obstruction of justice.

But Mr. Nadler and his fellow Democrats want to see the report for themselves – the entire report, not the redacted version that Mr. Barr is promising by mid-April. Mr. Barr says he cannot legally hand over the entire report because it contains information related to a grand jury, or to ongoing prosecutions, or that is classified or may unduly infringe on personal privacy.

Hence Mr. Nadler’s subpoenas and court threat, which he intends to deliver on in “short order” if the Justice Department does not comply with a full report. Yet this seemingly tough stance belies a weakness in the supposedly mighty congressional subpoena: Its enforcement can be “inadequate,” in part because resolution can take years, according to a new report by the nonpartisan Congressional Research Service.

The Judiciary Committee’s subpoena move – based on a partisan vote – also points to a different kind of weakness, say legal and government experts. It’s born of the expectation that as soon as an opposition party takes control in Congress, it cranks up the investigation machine – which in turn feeds the perception that subpoenas are much more about the interest of a party, than the interest of Congress as an institution.

“It’s become increasingly routine for congressional committees to pound their chest and use the subpoena,” says Prof. Neal Devins, a constitutional scholar at William and Mary Law School in Williamsburg, Virginia. “When you do something repeatedly, it becomes a little ritualistic, it loses a little of its oomph.”

This week, the House Committee on Oversight and Reform also authorized subpoenas – relating to security clearances given to 25 people despite rejection by career staffers, and to a question about United States citizenship in the upcoming Census.

Congress has two ways to enforce a subpoena, and both are problematic, according to the Congressional Research Service Report, which came out last month.

One is to ask the executive branch to enforce a criminal contempt citation for an individual who is willfully refusing to comply with a committee’s subpoena. But there’s an inherent conflict there if the executive branch is being asked to lower the hammer on itself.

The other way is to pursue the case through the courts, which can take a long time and does not always ensure access to the information that a committee wants.

Only four times in recent history has the House held an executive branch official (or former official) in criminal contempt for refusing to comply with a subpoena. Not surprisingly, in all four cases the executive branch refused to prosecute, and three times the House looked to the courts.

In one instance, Americans had elected a new Congress and president by the time a settlement was reached and the case dismissed (Committee on the Judiciary v. Miers). Most of the documents were provided, however, and Harriett Miers, the former White House counsel under President George W. Bush, had to testify under oath, but in a closed, transcribed hearing. Ms. Miers and White House chief of staff Joshua Bolten had refused subpoenas in 2007 for testimony and documents relating to the dismissal of U.S. attorneys, citing executive privilege.

Similarly, former Attorney General Eric Holder also asserted executive privilege when he failed in 2012 to comply with a congressional subpoena in the “Fast and Furious” case about gunrunners, Mexican criminals, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. In that case, too, the House turned to the courts. It is still unresolved, even as the presidency and Congress have changed hands.

Rep. Madeleine Dean, D-Pa., of the House Judiciary Committee says she is concerned about Congress’s ability to enforce subpoenas. In the case of the Mueller report, however, she says the public is on the side of Democrats. A slew of opinion polls show the vast majority of Americans want the full Mueller report released.

“The American people will demand it,” says Congresswoman Dean. “Between their pressure and the power of the majority and this chairman offering the subpoena, I think we’ll be successful.” 

Last month, before Mr. Mueller submitted his report to the attorney general, the House voted almost unanimously to release the full report to Congress and to release all of the report to the public except those parts that are “prohibited by law.”

But Republicans now say Democrats are playing politics with Mr. Nadler’s subpoena authorization. They argue that he’s pressing for the full report before he’s even seen the redacted version, and point to the restrictions that Attorney General Barr legally faces in sending the report to Congress.

“They’re just determined to go after the president because Mueller wasn’t what they hoped,” says Rep. Jim Jordan, R-Ohio, ranking member on the Oversight Committee who also has a seat on Judiciary.

Lawmakers and observers say it’s too early to know how the tussle between investigators in Congress and this White House will compare with previous times when the opposition took over – especially in the House, where it’s much easier for the majority party to work its will.

Almost every shift in partisan control of Congress after a unified government has been followed by a wave of congressional investigations, and that’s especially true in intensely polarized times, says Douglas Kriner, co-author of the book, “Investigating the President: Congressional Checks on Presidential Power” and a government professor at Cornell University in Ithaca, New York.

Looking ahead, he says “Democrats have a lot of opportunities to score political points, just the way Republicans had a lot of opportunities in investigating Obama.”

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