[House Report 116-105]
[From the U.S. Government Publishing Office]
House Calendar No. 26
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-105
_______________________________________________________________________
RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND WILLIAM
P. BARR, ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, IN CONTEMPT OF
CONGRESS FOR REFUSAL TO COMPLY WITH A SUBPOENA DULY ISSUED BY THE
COMMITTEE ON THE JUDICIARY
__________
R E P O R T
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
together with
DISSENTING VIEWS
June 6, 2019.--Referred to the House Calendar and ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
89-006 WASHINGTON : 2019
House Calendar No. 26
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-105
======================================================================
RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND WILLIAM
P. BARR, ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, IN CONTEMPT OF
CONGRESS FOR REFUSAL TO COMPLY WITH A SUBPOENA DULY ISSUED BY THE
COMMITTEE ON THE JUDICIARY
_______
June 6, 2019.--Referred to the House Calendar and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
The Committee on the Judiciary, having considered this
Report, report favorably thereon and recommend that the Report
be approved.
The form of Resolution that the Committee on the Judiciary
would recommend to the House of Representatives for citing
William P. Barr, Attorney General, U.S. Department of Justice,
for contempt of Congress pursuant to this Report is as follows:
Resolved, That William P. Barr, Attorney General of the
United States, shall be found to be in contempt of Congress for
failure to comply with a congressional subpoena.
Resolved, That pursuant to 2 U.S.C. Sec. Sec. 192 and 194,
the Speaker of the House of Representatives shall certify the
report of the Committee on the Judiciary, detailing the refusal
of William P. Barr, Attorney General, U.S. Department of
Justice, to produce documents to the Committee on the Judiciary
as directed by subpoena, to the United States Attorney for the
District of Columbia, to the end that Mr. Barr be proceeded
against in the manner and form provided by law.
Resolved, That the Speaker of the House shall otherwise
take all appropriate action to enforce the subpoena.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 4
Hearings......................................................... 16
Committee Consideration.......................................... 17
Committee Votes.................................................. 17
Committee Oversight Findings..................................... 23
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 23
Duplication of Federal Programs.................................. 23
Performance Goals and Objectives................................. 23
Advisory on Earmarks............................................. 23
Rule of Construction............................................. 23
Dissenting Views................................................. 24
Purpose and Summary
The Committee on the Judiciary (``the Committee'') is
currently engaged in an investigation into alleged obstruction
of justice, public corruption, and other abuses of power by
President Donald Trump, his associates, and members of his
Administration. Relatedly, the Committee is considering what
legislative, oversight, or constitutional responses may be
appropriate in response to any possible misconduct uncovered.
For these purposes, the Committee has sought to obtain from
Attorney General William Barr and the Department of Justice
(``DOJ'' or ``Department'') a complete and unredacted copy,
including exhibits and attachments, of the ``Report On The
Investigation Into Russian Interference In The 2016
Presidential Election'' (``Mueller Report'') submitted to the
Attorney General pursuant to 28 C.F.R. Sec. 600.8(c) by Special
Counsel Robert S. Mueller, III, as well as access to the
underlying and supporting evidence and investigatory materials
cited in the Mueller Report, and to other materials collected
and produced by the Special Counsel's office.
Since first communicating its need to obtain this
information, the Committee has acknowledged the Attorney
General's legal and policy concerns regarding release of these
materials and has sought to negotiate an accommodation
acceptable to both the Attorney General and the Committee.
Nevertheless, Attorney General Barr failed to comply with the
Committee's request for these documents and thereby has
hindered the Committee's constitutional, oversight, and
legislative functions. Following Attorney General Barr's
decision to provide only a redacted version of the Mueller
Report to Congress--despite numerous entreaties to work toward
a mutually acceptable accommodation--the Committee issued a
subpoena on April 19, 2019 directing the Attorney General to
produce an unredacted copy of the Mueller Report as well as the
underlying materials by May 1, 2019. Attorney General Barr
failed to comply with the Committee's subpoena.
The redacted Mueller Report contains numerous findings,
including: (1) the Russian government attacked the 2016 U.S.
presidential election in ``sweeping and systematic fashion''\1\
through a social media campaign, and releasing hacked
documents;\2\ (2) Russian intelligence services intentionally
focused on state and local databases of registered voters, and
state and local websites affiliated with voter registration;
for example, ``[t]he GRU compromised the computer network of
the Illinois State Board of Elections . . . then gained access
to a database containing information on millions of registered
Illinois voters, and extracted data related to thousands of
U.S. voters before the malicious activity was identified'';\3\
(3) there were numerous links between the Russian government
and the presidential campaign of Donald J. Trump (``Trump
Campaign'' or ``Campaign''), which ``consisted of business
connections, offers of assistance to the Campaign, invitations
for candidate Trump and Putin to meet in person, invitations
for Campaign officials and representatives of the Russian
government to meet, and policy positions seeking improved U.S.-
Russian relations'';\4\ (4) evidence of repeated attempts to
obstruct justice by the President, including ``multiple acts by
the President that were capable of exerting undue influence
over law enforcement investigations, including the Russian-
interference and obstruction investigations,''\5\ which were
``often carried out through one-on-one meetings in which the
President sought to use his official power outside of usual
channels'';\6\ (5) substantial evidence that President Trump's
attempts to remove the Special Counsel were linked to
investigations that involved the President's conduct and that
once the President ``became aware that his own conduct was
being investigated in an obstruction-of-justice inquiry, he
engaged in a second phase of conduct, involving public attacks
on the investigation, non-public efforts to control it, and
efforts in both public and private to encourage witnesses not
to cooperate with the investigation'';\7\ and (6) multiple
instances where the President sought to prevent his associates
from cooperating with investigations, including ``substantial
evidence . . . that in repeatedly urging [White House Counsel
Donald F.] McGahn to dispute that he was ordered to have the
Special Counsel terminated, the President acted for the purpose
of influencing McGahn's account in order to deflect or prevent
further scrutiny of the President's conduct towards the
investigation.''\8\
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\1\Robert S. Mueller, III, Report On The Investigation Into Russian
Interference In The 2016 Presidential Election (Mar. 2019), Vol. I, at
1 (hereinafter ``Mueller Report'').
\2\Id. Vol. I, at 4.
\3\Id. Vol. I, at 50.
\4\Id. Vol. I, at 5.
\5\Id. Vol. II, at 157.
\6\Id.
\7\Id. Vol. II, at 7.
\8\Id. Vol. II, at 120.
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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. It also
demonstrates a compelling need to strengthen laws to improve
election security. The redacted Mueller Report, however, 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. Attorney General
Barr's refusal to comply with the Committee's subpoena or to
engage in a meaningful accommodations process therefore
continues to thwart the Committee's ability to fulfill its
responsibilities.
Background and Need for the Legislation
I. Background
A. ORIGINS OF THE SPECIAL COUNSEL'S INVESTIGATION AND THE MUELLER
REPORT
On January 6, 2017, the Office of the Director of National
Intelligence released an intelligence assessment on ``Assessing
Russian Activities and Intentions in Recent U.S.
Elections.''\9\ The assessment concluded that ``Russian
President Vladimir Putin ordered an influence campaign in 2016
aimed at the U.S. presidential election,'' and that the goals
of this campaign were, inter alia, ``to undermine public faith
in the U.S. Democratic process.''\10\
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\9\Assessing Russian Activities and Intentions in Recent U.S.
Elections, Report of the Office of the Director of National
Intelligence (Jan. 6, 2019).
\10\Id. at ii.
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On March 2, 2017, Attorney General Jeff Sessions recused
himself from any possible DOJ investigations related to the
2016 presidential campaign, given Mr. Sessions's own
involvement with the Trump Campaign and his failure to disclose
during his confirmation hearing his contacts with Russian
Ambassador Sergey Kislyak while serving in his capacity as the
Trump Campaign's National Security Committee Chairman.\11\
Later that month, at a hearing before the House Permanent
Select Committee on Intelligence, Director of the Federal
Bureau of Investigation (FBI) James Comey testified that he was
authorized by DOJ to confirm that the FBI was currently
investigating Russian interference in the 2016 election, as
well as whether there was any coordination between individuals
associated with the Trump Campaign and the Russian
government.\12\
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\11\Karoun Demirjian, Ed O'Keefe, Sari Horwitz, & Matt Zapotosky,
Attorney General Jeff Sessions will recuse himself from any probe
related to 2016 presidential campaign, Wash. Post, Mar. 2, 2017.
\12\Matthew Rosenberg, Emmarie Huetteman & Michael S. Schmidt,
Comey Confirms F.B.I. Inquiry on Russia; Sees No Evidence of
Wiretapping, N.Y. Times, Mar. 20, 2017.
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On May 9, 2017, President Trump fired Director Comey and
subsequently provided conflicting explanations for Mr. Comey's
dismissal.\13\ On May 17, 2017, Acting Attorney General Rod
Rosenstein, pursuant to DOJ regulations,\14\ appointed former
FBI Director Robert Mueller to serve as Special Counsel.\15\
Mr. Rosenstein's order stated that the purpose of Special
Counsel Mueller's appointment was ``to ensure a full and
thorough investigation of the Russian government's efforts to
interfere in the 2016 presidential election,'' as well as to
investigate ``any links and/or coordination between the Russian
government and individuals associated with the campaign of
President Donald Trump.'' Special Counsel Mueller's
jurisdiction also included authority to investigate ``any
matters that arose or may arise directly from the
investigation,'' and ``any other matters within the scope of 28
C.F.R. Sec. 600.4(a).'' Section 600.4(a) of the Code of Federal
Regulations reads in relevant part that ``[t]he jurisdiction of
a Special Counsel shall also include the authority to
investigate and prosecute federal crimes committed in the
course of, and with intent to interfere with, the Special
Counsel's investigation, such as perjury, obstruction of
justice, destruction of evidence, and intimidation of
witnesses.'' The Special Counsel's investigation resulted in
the indictment of 34 individuals and three companies, seven
guilty pleas, and one conviction following a jury trial.
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\13\Michelle Ye Hee Lee, All of the White House's conflicting
explanations for Comey's firing: A timeline, Wash. Post, May 12, 2017.
\14\28 C.F.R. Sec. 600 et. seq. (2019).
\15\Office of the Deputy Attorney General, U.S. Dep't of Justice,
Order No. 3915-2017 (2017).
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According to DOJ regulations, upon the conclusion of the
Special Counsel's investigation, ``he or she shall provide the
Attorney General with a confidential report explaining the
prosecution or declination decisions reached by the Special
Counsel.''\16\ The Attorney General, in turn, is required to
notify the Chairman and Ranking Member of the House and Senate
Judiciary Committees when the Special Counsel concludes an
investigation.\17\ On March 22, 2019, Attorney General Barr
notified the Committee that he had received the Report from
Special Counsel Mueller.\18\ On March 24, 2019, Attorney
General Barr provided the Committee his summary of principal
conclusions of the Mueller Report.\19\ On April 18, 2019,
nearly four weeks after Special Counsel Mueller submitted his
confidential Report, the Attorney General released a redacted
copy of the Report to Congress and the public.
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\16\28 C.F.R. Sec. Sec. 600.8(c) (2019).
\17\28 C.F.R. Sec. 600.9(a)(3) (2019).
\18\Letter to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary; Hon. Lindsey Graham, Chairman, S. Comm. on the Judiciary;
Hon. Doug Collins, Ranking Member, H. Comm. on the Judiciary; Hon.
Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary, from
William Barr, Attorney General, U.S. Dep't of Justice (Mar. 22, 2019)
(hereinafter ``Notification Letter'').
\19\Letter to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary; Hon. Lindsey Graham, Chairman, S. Comm. on the Judiciary;
Hon. Doug Collins, Ranking Member, H. Comm. on the Judiciary; Hon.
Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary, from
William Barr, Attorney General, U.S. Dep't of Justice (Mar. 24, 2019).
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B. REQUESTS FOR INFORMATION FROM THE DEPARTMENT OF JUSTICE REGARDING
THE MUELLER REPORT AND SUBPOENA ISSUED TO ATTORNEY GENERAL WILLIAM BARR
In February 2019, well before Attorney General Barr
received the Mueller Report, the Committee commenced the
process of informing DOJ that it sought an unredacted copy of
the Mueller Report once it was completed as well as access to
the underlying materials. As described below, the Committee has
from that time to the present also expressed its willingness to
consider the Department's legal and policy concerns related to
the release of such materials and offered to negotiate mutually
acceptable solutions.
On February 22, 2019, Chairman Jerrold Nadler along with
five other committee chairs wrote a letter to Attorney General
Barr indicating their expectation that DOJ would disclose the
Mueller Report to the public ``to the maximum extent permitted
by law,'' and requesting that ``to the extent that the
Department believes that certain aspects of the report are not
suitable for immediate public release,'' the Department provide
that information to Congress ``along with your reasoning for
withholding the information from the public.''\20\ The letter
further stated the expectation that DOJ would provide ``to our
Committees, upon request and consistent with applicable law,
other information and material obtained or produced by the
Special Counsel.''\21\ Thereafter, the full House of
Representatives unanimously endorsed this view.\22\ On March
14, 2019, the House voted 420 to 0 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.''\23\
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\20\Letter to Hon. William Barr, Attorney General, U.S. Dep't of
Justice, from Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary;
Hon. Adam Schiff, Chairman, H. Permanent Select Comm. on Intelligence;
Hon. Elijah Cummings, Chairman, H. Comm. on Oversight and Reform; Hon.
Eliot Engel, Chairman, H. Comm. on Foreign Affairs; Hon. Maxine Waters,
Chairwoman, H. Comm. on Financial Services & Hon. Richard Neal,
Chairman, H. Comm. on Ways and Means (Feb. 22, 2019).
\21\Id.
\22\165 Cong. Rec. H2731-32 (daily ed. Mar. 14, 2019).
\23\H.Con.Res.24, Expressing the Sense of Congress that the Report
of Special Counsel Mueller Should Be Made Available to the Public and
to Congress, 116th Cong. (2019).
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In spite of these reasonable requests from the House and
the Committee to receive the unredacted Mueller Report and the
underlying materials, as well as the House's position that it
is entitled to information beyond what might be made publicly
available, Attorney General Barr's communications during this
period drew no distinction between Congress and the public, and
ignored the Committee's requests for materials underlying the
Mueller Report. In his March 22, 2019 notification letter,
Attorney General Barr indicated that he would in short order
``advise'' the Committee of the Special Counsel's ``principal
conclusions'' and that he would consult with Deputy Attorney
General Rosenstein and Special Counsel Mueller ``to determine
what other information from the report can be released to
Congress and the public consistent with the law, including the
Special Counsel regulations, and the Department's longstanding
policies and practices.''\24\
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\24\Notification Letter.
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On March 24, 2019, Attorney General Barr wrote a letter
summarizing the Mueller Report's ``principal conclusions.''\25\
The letter also briefly discussed the status of the
Department's review of the Mueller Report. Again, the Attorney
General failed to address the Committee's stated expectation
that it receive an unredacted copy and access to the Mueller
Report's underlying materials. Instead, the Attorney General
reiterated his intent to ``release as much of the Special
Counsel's report as I can consistent with applicable law,
regulations, and Departmental policies,'' and indicated his
intent to withhold material that ``is or could be subject to
Federal Rule of Criminal Procedure 6(e).''\26\
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\25\Letter to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary; Hon. Lindsey Graham, Chairman, S. Comm. on the Judiciary;
Hon. Doug Collins, Ranking Member, H. Comm. on the Judiciary; Hon.
Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary, from
William Barr, Attorney General, U.S. Dep't of Justice (Mar. 24, 2019).
\26\Id.
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In response, on March 25, 2019, Chairman Nadler along with
the chairs of five other committees wrote a letter to Attorney
General Barr formally requesting that he ``release the Special
Counsel's full report to Congress no later than Tuesday, April
2 [2019]'' and that he begin ``transmitting the underlying
evidence and materials to the relevant committees at that
time.''\27\ The letter further expressed the committees'
willingness to accommodate the Attorney General's concerns,
noting that ``[t]o the extent that you believe applicable law
limits your ability to comply, we urge you to begin the process
of consultation with us immediately in order to establish
shared parameters for resolving those issues without
delay.''\28\
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\27\Letter to Hon. William Barr, Attorney General, U.S. Dep't of
Justice, from Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary;
Hon. Adam Schiff, Chairman, H. Permanent Select Comm. on Intelligence;
Hon. Elijah Cummings, Chairman, H. Comm. on Oversight and Reform; Hon.
Elliot Engel, Chairman, H. Comm. on Foreign Affairs; Hon. Maxine
Waters, Chairwoman, H. Comm. on Financial Services & Hon. Richard Neal,
Chairman, H. Comm. on Ways and Means (Mar. 25, 2019).
\28\Id.
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The committee chairs' March 25 letter also addressed the
reasons underlying their request. The chairs explained that
``the release of the full report and the underlying evidence
and documents is urgently needed'' by the committees ``to
perform their duties under the Constitution.'' As the chairs
explained, ``[t]hose duties include evaluating the underlying
facts and determining whether legislative or other reforms are
required--both to ensure that the Justice Department is able to
carry out investigations without interference or obstruction by
the President and to protect our future elections from foreign
interference.''\29\
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\29\Id.
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On March 29, 2019, Attorney General Barr responded to
Chairman Nadler's March 25 letter, but failed to address the
committee chairs' requests and their explicit offer to begin
consultations over access to the Mueller Report's underlying
materials.\30\ Instead, the Attorney General reiterated that
the Department was preparing the Mueller Report for release by
making what he described as ``the redactions that are
required.''\31\ The Attorney General described four categories
of information he intended to withhold from both Congress and
the public: (1) material subject to Federal Rule of Criminal
Procedure 6(e); (2) material that the intelligence community
identifies as potentially compromising sensitive sources and
methods; (3) material whose release could affect ongoing
matters; and (4) information that would unduly infringe on the
personal privacy and reputational interests of ``peripheral
third parties.''\32\ The Attorney General indicated the Mueller
Report would be released ``in mid-April, if not sooner,'' and
offered to testify before the House Judiciary Committee on May
2, 2019.\33\
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\30\Letter to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, & Hon. Lindsey Graham, Chairman, S. Comm. on the Judiciary
from Hon. William Barr, Attorney General, U.S. Dep't of Justice (Mar.
29, 2019).
\31\Id.
\32\Id.
\33\Id.
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During this period, Committee majority staff engaged in
discussions with DOJ Office of Legislative Affairs (OLA)
officials in an attempt to begin the accommodations process
offered in the chairs' March 25 letter, but the parties were
ultimately unable to reach an agreement. OLA officials
eventually informed Committee majority staff on March 29, 2019
that the Department had no plans to share redacted portions of
the Mueller Report with Congress, but indicated that further
negotiations could proceed following the Mueller Report's
public release.
On April 1, 2019, Chairman Nadler and the chairs of the
five other committees again wrote to Attorney General Barr
urging him to ``begin the process of consultation with us
immediately'' and to inform him that the Judiciary Committee
``plans to begin the process of authorizing subpoenas for the
report and underlying evidence and materials.''\34\ The letter
contained a detailed appendix describing the nature of the
committees' need for the Mueller Report and the underlying
evidence, noting that ``[t]he longer the delay in obtaining
this information, the more harm will accrue to Congress's
independent duty to investigate misconduct by the President and
to assure public confidence in the independence of federal law
enforcement operations.''\35\ The letter further explained that
neither Rule 6(e) nor any applicable privilege barred
disclosure of these materials to Congress. Additionally, the
letter stated that to the extent the Department believed it was
unable to produce any materials due to Rule 6(e), which
pertains to grand jury secrecy, then ``it should seek leave
from the district court to produce those materials to
Congress--as it has done in analogous situations in the
past.''\36\
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\34\Letter to Hon. William Barr, Attorney General, U.S. Dep't of
Justice, from Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary;
Hon. Adam Schiff, Chairman, H. Permanent Select Comm. on Intelligence;
Hon. Elijah Cummings, Chairman, H. Comm. on Oversight and Reform; Hon.
Eliot Engel, Chairman, H. Comm. on Foreign Affairs; Hon. Maxine Waters,
Chairwoman, H. Comm. on Financial Services & Hon. Richard Neal,
Chairman, H. Comm. on Ways and Means (Apr. 1, 2019).
\35\Id.
\36\Id.
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That same day, Chairman Nadler announced a markup to
authorize the issuance of a subpoena for the Mueller Report and
the underlying material, and released a statement that
``Attorney General Barr has thus far indicated he will not meet
the April 2 deadline set by myself and five other committee
chairs, and refused to work with us to provide the full report,
without redactions, to Congress.''\37\ On April 3, 2019, the
Committee, by a vote of 24 to 17, authorized Chairman Nadler to
issue a subpoena for the Mueller Report and the underlying
evidence. The Chairman did not, however, issue the subpoena
pending further efforts to reach an accommodation with DOJ.
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\37\Press Release, H. Comm. on the Judiciary, Wednesday: House
Judiciary to Hold Markup to Authorize Subpoenas for Full Mueller Report
and Related Matters, available at https://judiciary.house.gov/news/
press-releases/wednesday-house-judiciary-hold-markup-authorize-
subpoenas-full-mueller-report.
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At an appearance before the House Appropriations Committee
on April 9, 2019, Attorney General Barr stated that he had no
intention of accommodating the Committee's request until after
the Mueller Report's public release.\38\ When directly asked
whether DOJ would request the district court to approve the
release of grand jury material to the Committee, Attorney
General Barr responded, ``My intention is not to ask for it at
this stage.''\39\
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\38\Ellis Kim, AG Barr: No Plans to Ask Court to Release Grand Jury
Info in Mueller Report, Nat'l L. J., Apr. 9, 2019.
\39\Id.
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On April 11, 2019, Chairman Nadler, along with Chairman
Adam Schiff, Speaker of the House Nancy Pelosi, Senate Minority
Leader Charles Schumer, Senate Judiciary Committee Ranking
Member Dianne Feinstein, and Senate Intelligence Committee Vice
Chairman Mark Warner, wrote to Attorney General Barr to
reiterate that ``as a matter of law, Congress is entitled to
the full report . . . as well as the underlying evidence,'' and
to remind him that ``the Department of Justice has an
obligation to work with the relevant committees of the House
and Senate to reach an accommodation on the full report and the
underlying evidence.''\40\ They further noted that ``we have
received no direct response, and you have made no effort to
work with us to accommodate our concerns. This work should not
wait until after you have provided a redacted report.''\41\
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\40\Letter to Hon. William Barr, Attorney General, U.S. Dep't of
Justice, from Hon. Nancy Pelosi, Speaker, U.S. House of
Representatives; Hon. Charles Schumer, Minority Leader, U.S. Senate;
Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary; Hon. Adam
Schiff, Chairman, H. Permanent Select Comm. on Intelligence, Hon.
Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary & Hon. Mark
Warner, Vice Chairman, S. Select Comm. on Intelligence (Apr. 11, 2019).
\41\Id.
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Attorney General Barr released a redacted version of the
Mueller Report to Congress and to the public on April 18, 2019.
The substance of even the redacted Report expressly affirmed
Congress' independent authority to conduct its own
investigation pursuant to its legislative, oversight, and other
constitutional prerogatives. Specifically, the Special Counsel
noted the need not to ``preempt constitutional processes for
addressing presidential misconduct,'' affirmed that ``Congress
can validly make obstruction-of-justice statutes applicable to
corruptly motivated official acts of the President,'' and
rejected President Trump's ``statutory and constitutional
defenses to the potential application of the obstruction-of-
justice statutes to the President's conduct.''\42\
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\42\Mueller Report Vol. II, at 1, 171, 159.
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Although the Committee had requested the unredacted Mueller
Report on numerous occasions and had requested in multiple
letters to begin consultation regarding access to redacted and
underlying materials, Attorney General Barr refused to engage
the Committee. In fact, Attorney General Barr did not make a
direct, concrete offer to accommodate the Committee's request
until after he released the redacted Mueller Report. In his
letter accompanying the Mueller Report, Attorney General Barr
finally acknowledged that ``you have expressed an interest in
viewing an unredacted version of the report,'' but offered only
to make a less redacted version of the Mueller Report available
for review with grand jury information still withheld.\43\
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\43\Letter to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary; Hon. Lindsey Graham, Chairman, S. Comm. on the Judiciary;
Hon. Doug Collins, Ranking Member, H. Comm. on the Judiciary; Hon.
Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary, from
William Barr, Attorney General, U.S. Dep't of Justice (Apr. 18, 2019).
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Furthermore, in a separate letter written on April 18,
2019, Assistant Attorney General Stephen Boyd detailed the
specific terms of Attorney General Barr's offer.\44\ The
Attorney General would only permit the majority and minority
leaders of the House and Senate, and Chairs and Ranking Members
of select House and Senate Committees, including Chairman
Nadler and Ranking Member Collins, along with a single staff
member each, to review at the Department of Justice ``certain
material redacted in the publicly released report'' and for a
limited period of time between April 22 and April 26, 2019.\45\
The Department further offered to permit review of a less-
redacted version of the Mueller Report to the same limited
group on Capitol Hill for a one-week period starting on April
29, 2019.\46\ The Department insisted that any notes taken
would also have to remain at the Department in a secure
facility.\47\
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\44\Letter to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary & Hon. Lindsey Graham, Chairman, S. Comm. on the Judiciary,
from Stephen Boyd, Assistant Attorney General, U.S. Dep't of Justice
(Apr. 18, 2019).
\45\Id.
\46\Id.
\47\Id.
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On April 19, 2019, Chairman Nadler informed Attorney
General Barr that although ``the current proposal is not
workable, we are open to discussing a reasonable accommodation
with the Department that would protect law enforcement
sensitive information while allowing Congress to fulfill its
constitutional duties.''\48\ On that same day, Chairman Nadler
issued a subpoena to Attorney General Barr for: (1) the full
Mueller Report, including any exhibits or attachments; (2) all
materials referenced in the Mueller Report; and (3) all
materials obtained or produced by the Special Counsel's office.
The subpoena required production of these materials by May 1,
2019. In a statement released to the public, Chairman Nadler
explained, ``I am open to working with the Department to reach
a reasonable accommodation for access to these materials,
however I cannot accept any proposal which leaves most of
Congress in the dark, as they grapple with their duties of
legislation, oversight and constitutional accountability.''\49\
To emphasize Congress' willingness to accommodate the
Department's concerns, Speaker Pelosi on May 1, 2019, wrote the
Attorney General directly to urge that initial proposals for
resolving the dispute that had been raised at an in-person
meeting of Congressional and Department staff on April 29, 2019
``be given serious consideration by you so we can work together
productively.''\50\
---------------------------------------------------------------------------
\48\Letter to Hon. William Barr, Attorney General, U.S. Dep't of
Justice, from Hon. Nancy Pelosi, Speaker, U.S. House of
Representatives; Hon. Charles Schumer, Minority Leader, U.S. Senate;
Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary; Hon. Adam
Schiff, Chairman, H. Permanent Select Comm. on Intelligence; Hon.
Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary & Hon. Mark
Warner, Vice Chairman, S. Select Comm. on Intelligence (Apr. 19, 2019).
\49\Press Release, H. Comm. on the Judiciary, Chairman Nadler
Issues Subpoena for Full Mueller Report and Underlying Materials,
available at https://judiciary.house.gov/news/press-releases/chairman-
nadler-issues-subpoena-full-mueller-report-and-underlying-materials.
\50\Letter to Hon. William Barr, Attorney General, U.S. Dep't of
Justice, from Hon. Nancy Pelosi, Speaker, U.S. House of Representatives
(May 1, 2019).
---------------------------------------------------------------------------
On May 1, 2019, the Department informed the Committee that
it would not comply with Chairman Nadler's subpoena.\51\ On May
3, 2019, Chairman Nadler responded to the Department's May 1
letter, noting:
---------------------------------------------------------------------------
\51\Letter to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, from Stephen Boyd, Assistant Attorney General, U.S. Dep't of
Justice (May 1, 2019).
[T]he Department has never explained why it is
willing to allow only a small number of Members to view
a less-redacted version of the report, subject to the
condition that they cannot discuss what they have seen
with anyone else. The Department also remains unwilling
to work with the Committee to seek a court order
permitting disclosure of materials in the report that
are subject to Federal Rule of Criminal Procedure 6(e).
And the Department has offered no reason whatsoever for
failing to produce the evidence underlying the report,
except for a complaint that there is too much of it and
a vague assertion about the sensitivity of law
enforcement files.\52\
---------------------------------------------------------------------------
\52\Letter to Stephen Boyd, Assistant Attorney General, U.S.
Department of Justice, from Hon. Jerrold Nadler, Chairman, H. Comm. on
the Judiciary (May 3, 2019).
Chairman Nadler also observed that Attorney General Barr's
``proposed conditions are a departure from accommodations made
by previous Attorneys General of both parties.''\53\ The letter
notes that the Department ``produced more than 880,000 pages of
sensitive investigative materials pertaining to its
investigation of Hillary Clinton, as well as much other
material relating to the then-ongoing Russia
investigation.''\54\ The letter further notes that production
``included highly classified material, notes from FBI
interviews, internal text messages, and law enforcement
memoranda'' and that in the ``most recent prior instance in
which the Department conducted an investigation of a sitting
President, Kenneth Starr produced a 445-page report to Congress
along with 18 boxes of accompanying evidence.''\55\
---------------------------------------------------------------------------
\53\Id.
\54\Id.
\55\Id.
---------------------------------------------------------------------------
Chairman Nadler nonetheless communicated his continued
willingness to ``negotiate a reasonable accommodation with the
Department.''\56\ Chairman Nadler renewed his request that the
``Department work jointly with Congress to seek a court order
permitting disclosure of materials covered by Rule 6(e)'';
offered to prioritize a ``specific, defined set of underlying
investigative and evidentiary materials for immediate
production,'' namely the ``investigative and evidentiary
materials specifically cited in the report''; and indicated he
was ``prepared to discuss limiting and prioritizing our request
. . . for other underlying evidence obtained by the Special
Counsel's office.''\57\
---------------------------------------------------------------------------
\56\Id.
\57\Id.
---------------------------------------------------------------------------
On the evening before the scheduled date of the Committee's
meeting to consider a resolution holding the Attorney General
in contempt, and while negotiations were ongoing, the Committee
received a letter from Assistant Attorney General Stephen E.
Boyd that stated, ``In the face of the Committee's threatened
contempt vote, the Attorney General will be compelled to
request that the President invoke executive privilege with
respect to the materials subject to subpoena.'' He then
requested that ``the Committee hold the subpoena in abeyance
and delay any vote on whether to recommend a citation of
contempt for noncompliance with the subpoena, pending the
President's determination of this question.'' Although Mr. Boyd
clarified that this request was ``not itself an assertion of
executive privilege,'' he did explain that should the Committee
decide ``to proceed in spite of this request . . . the Attorney
General will advise the President to make a protective
assertion of executive privilege over the subpoenaed material,
which undoubtedly includes material covered by executive
privilege.'' Today, during the Committee's meeting, the
Committee received a letter from Mr. Boyd stating ``that the
President has asserted executive privilege over the entirety of
the subpoenaed materials,'' and that this was a ``protective
assertion'' of the privilege. Mr. Boyd attached a letter dated
the day of the Committee's meeting, from Attorney General
William P. Barr to the President requesting that the President
``make a protective assertion of executive privilege.'' No
other evidence of the President's assertion of the privilege
was provided.
The Committee has a number of concerns about the validity
of this assertion: (1) the purported protective assertion is
not a valid claim of privilege, including because executive
privilege has been broadly waived in this case as a matter of
law and fact; (2) the proposed assertion could have been made
previously and at the very least, by May 1, 2019, the subpoena
return date; (3) the correspondence does not contain a
statement by the President himself asserting the privilege; (4)
it is not credible that ``the entirety of the subpoenaed
material'' consists of ``communications authored or solicited
and received by those members of an immediate White House
adviser's staff who have broad and significant responsibility
for investigating and formulating the advice to be given the
President on the particular matter to which the communications
relate''\58\; (5) it is not credible that the entirety of the
materials are subject to other constitutionally recognized
privileges; (6) the assertion is suspect with respect to
redacted portions of the Report because the Attorney General
himself has indicated a willingness to allow an arbitrarily
limited number of Members to view those materials; (7) the
Department of Justice has failed to provide any details by
which the Committee might evaluate the applicability of the
privilege, such as the senders and recipients of the documents,
or the privilege log and other information called for by the
subpoena; (8) even if the assertion of the privilege were valid
as an initial matter, which it is not, the assertion has been
overcome here, as: (i) the Committee has demonstrated a
sufficient need for the documents as they are likely to contain
evidence critical to the Committee's inquiry; (ii) the
documents sought cannot expeditiously be obtained any other
way; and (iii) any executive privilege that could be asserted
to the report has been waived when the President previously
made the decision not to assert executive privilege over any
portion of the report, as announced by the Attorney General;
(9) there is substantial evidence indicating that the President
engaged in obstruction of justice and other misconduct, and
therefore the public interest in the fair administration of
justice outweighs the President's generalized interest in
confidentiality; (10) and without these documents, the
Committee cannot fully perform its vital legislative, oversight
and constitutional duties. Accordingly, the last-minute claims
of the ``protective'' blanket assertion of executive privilege
over the entirety of the subpoenaed materials does not change
the fact that Attorney General William P. Barr is in contempt
of Congress today for failing to turn over lawfully subpoenaed
documents.
---------------------------------------------------------------------------
\58\In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir 1997).
---------------------------------------------------------------------------
II. Need for the Legislation
A. AUTHORITY AND LEGISLATIVE PURPOSE
The Committee on the Judiciary is a standing Committee of
the House of Representatives, duly established pursuant to the
Rules of the House of Representatives, which are adopted
pursuant to the Rulemaking Clause of the Constitution.\59\
House rule X(l) grants to the Committee legislative and
oversight jurisdiction over, inter alia, ``judicial
proceedings, civil and criminal,''; ``criminal law
enforcement''; the ``application, administration, execution,
and effectiveness of laws and programs addressing subjects
within its jurisdiction''; the ``operation of Federal agencies
and entities having responsibilities for the administration and
execution of laws and programs addressing subjects within its
jurisdiction''; and any conditions or circumstances that may
indicate the necessity or desirability of enacting new or
additional legislation addressing subjects within its
jurisdiction.''
---------------------------------------------------------------------------
\59\U.S. Const., Art. I, Sec. 5, Cl. 2.
---------------------------------------------------------------------------
House rule XI specifically authorizes the Committee and its
subcommittees to ``require, by subpoena or otherwise, the
attendance and testimony of such witnesses and the production
of such books, records, correspondence, memoranda, papers, and
documents as it considers necessary.'' The rule also provides
that the ``power to authorize and issue subpoenas'' may be
delegated to the Committee Chairman.
The investigation into the alleged obstruction of justice,
public corruption, and other abuses of power by President
Donald Trump, his associates, and members of his Administration
and related concerns is being undertaken pursuant to the full
authority of the Committee under rule X(l) and applicable law.
The purposes of this investigation include: (1) investigating
and exposing any possible malfeasance, abuse of power,
corruption, obstruction of justice, or other misconduct on the
part of the President or other members of his Administration;
(2) considering whether the conduct uncovered may warrant
amending or creating new federal authorities, including among
other things, relating to election security, campaign finance,
misuse of electronic data, and the types of obstructive conduct
that the Mueller Report describes; and (3) considering whether
any of the conduct described in the Special Counsel's Report
warrants the Committee in taking any further steps under
Congress' Article I powers. That includes whether to approve
articles of impeachment with respect to the President or any
other Administration official, as well as the consideration of
other steps such as censure or issuing criminal, civil or
administrative referrals. No determination has been made as to
such further actions, and the Committee needs to review the
unredacted report, the underlying evidence, and associated
documents so that it can ascertain the facts and consider its
next steps.\60\
---------------------------------------------------------------------------
\60\Several bills relevant to the legislative purpose of this
investigation have already been introduced and referred to the
Committee, including but not limited to: the Special Counsel
Independence and Integrity Act, H.R. 197, 116th Cong (2019); the
Special Counsel Reporting Act, H.R. 1357, 116th Cong. (2019); the
Presidential Pardon Transparency Act, H.R. 1348, 116th Cong. (2019);
and the For the People Act of 2019, H.R. 1, 116th Cong. (2019) (now
pending in the Senate).
---------------------------------------------------------------------------
B. URGENCY
Although the Committee has attempted to engage in
accommodations with Attorney General Barr for several months,
it can no longer afford to delay, and must resort to contempt
proceedings. The Committee urgently requires access to the
full, unredacted Mueller Report and to the investigatory and
evidentiary materials cited in the Report. The Mueller Report
describes the Russian government's extensive efforts to
interfere in the 2016 presidential election ``in sweeping and
systematic fashion.''\61\ First, a Russian entity known as the
``Internet Research Agency'' (IRA) carried out a social media
influence operation to ``sow discord in the U.S. political
system through what it termed `information warfare.'''\62\
Second, Russia's intelligence services hacked into computer
networks associated with the Clinton campaign, stole hundreds
of thousands of e-mails and other documents, and released those
documents online.\63\ Third, Russian intelligence services
successfully compromised state computer networks; for example,
they ``gained access to a database containing information on
millions of registered Illinois voters, and extracted data
related to thousands of U.S. voters,'' and ``targeted employees
of . . . voting technology company that developed software used
by numerous U.S. counties to manage voter rolls, and installed
malware on the company network.''\64\
---------------------------------------------------------------------------
\61\Mueller Report Vol. I, at 1.
\62\Id. Vol. I, at 4.
\63\Id. Vol. I, at 4-5.
\64\Id. Vol. I, at 50-51.
---------------------------------------------------------------------------
Russia's hostile actions against the United States and its
democratic institutions are ongoing. The Justice Department has
indicated in at least one other case that Russian influence
efforts continued into the 2018 midterm elections.\65\ With the
2020 elections looming, this threat to our democracy is at risk
of recurrence, and Congress must act immediately to address it.
Just recently, FBI Director Christopher Wray warned that Russia
continues to pose a ``very significant counterintelligence
threat,'' and that the U.S. government ``view[ed] 2018 as just
kind of a dress rehearsal for the big show in 2020.''\66\
Earlier this year, the Director of National Intelligence
similarly warned that Russia and other adversaries ``probably
are already looking to the 2020 U.S. election'' to conduct
malign influence operations and that ``Moscow may employ
additional influence toolkits--such as spreading
disinformation, conducting hack-and-leak operations, or
manipulating data--in a more targeted fashion to influence U.S.
policy, actions, and elections.''\67\
---------------------------------------------------------------------------
\65\See Criminal Complaint para.14, United States v. Khusyaynova,
No. 1:18-mj-464 (E.D. Va. Sept. 28, 2018) (alleging Russian national
participated in a conspiracy ``to interfere with U.S. political and
electoral processes, including the 2018 U.S. elections'').
\66\Transcript, A Conversation with Christopher Wray, Council on
Foreign Relations (Apr. 26, 2019).
\67\Daniel R. Coats, Director of National Intelligence, Worldwide
Threat Assessment of the U.S. Intelligence Community (Jan. 29, 2019).
---------------------------------------------------------------------------
In the face of these efforts, and with the 2020 elections
approaching, the Committee requires the most complete possible
understanding of Russia's influence and hacking operations.
Among other things, the Committee must be permitted to assess
whether the Department and the FBI are devoting sufficient
resources to the growing threat, and to consider remedial
legislation such as criminal penalties targeting election
inference activities or the use of illegally acquired data. In
its current form, sections of the Mueller Report describing the
structure and actions taken by the IRA are heavily
redacted.\68\ Sections of the Mueller Report describing the
hacking activities undertaken by Russian intelligence services
likewise contain significant redactions, which impair the
ability of the Committee to gain a complete understanding of
Russia's actions.\69\ Without this information, the Committee
is unable to fully perform its responsibility to protect the
impending 2020 elections--and thus our democracy itself--from a
recurrence of Russian interference.
---------------------------------------------------------------------------
\68\Mueller Report, Vol. I, at 15-35.
\69\Id. Vol. I, at 35-51.
---------------------------------------------------------------------------
President Trump's repeated efforts to obstruct and derail
the Special Counsel's investigations also pose grave concerns.
Volume II of Special Counsel Mueller's Report details
``multiple acts by the President that were capable of exerting
undue influence over law enforcement investigations, including
the Russian-interference and obstruction investigations.''\70\
The President's efforts increased in intensity over time. Once
he ``became aware that his own conduct was being investigated
in an obstruction-of-justice inquiry, he engaged in a second
phase of conduct, involving public attacks on the
investigation, non-public efforts to control it, and efforts in
both public and private to encourage witnesses not to cooperate
with the investigation.''\71\ These actions ``ranged from
efforts to remove the Special Counsel and to reverse the effect
of the Attorney General's recusal; to the attempted use of
official power to limit the scope of the investigation; to
direct and indirect contacts with witnesses with the potential
to influence their testimony.''\72\ In order to carry out this
campaign of obstruction, President Trump ``sought to use his
official power outside of usual channels,'' including by
conducting ``one-on-one meetings'' with Administration
officials or other advisors and by contacting the Attorney
General about the Russia investigation after he had been
explicitly counseled against doing so.\73\
---------------------------------------------------------------------------
\70\Id. Vol. II, at 157.
\71\Id. Vol. II, at 7.
\72\Id. Vol. II, at 157.
\73\Id.; see also e.g., id. Vol. II at 50-51 (President Trump
pulled Attorney General Sessions aside to ask that he ``unrecuse''
himself from the Russia investigation after the White House Counsel's
office directed that Sessions should not be contacted about the
matter).
---------------------------------------------------------------------------
The Mueller Report contains evidence that in the wake of an
attack by a hostile nation against American democratic
institutions, President Trump's response was to undermine the
investigation rather than take action against the perpetrators.
The facts recounted in the Mueller Report make clear the
Committee's interest in obtaining further, more detailed
information. For example, the Mueller Report states that when
the President learned that he himself was under investigation
for obstruction, the President ``directed McGahn to call
Rosenstein to have the Special Counsel removed.''\74\ At one
point the President went so far as to direct White House
Counsel Don McGahn to call Deputy Attorney General Rosenstein
and inform him that ```Mueller has conflicts and can't be the
Special Counsel.'''\75\ The President later ``asked McGahn in
[a] meeting why he had told Special Counsel's Office
investigators that the President had told him to have the
Special Counsel removed''\76\ and ordered Mr. McGahn to issue a
``statement denying that he had been asked to fire the Special
Counsel and that he had threatened to quit in protest.''\77\
---------------------------------------------------------------------------
\74\Id. Vol. II, at 88.
\75\Id.
\76\Id. Vol. II, at 117.
\77\Id. Vol. II, at 114.
---------------------------------------------------------------------------
Furthermore, the Mueller Report notes that the President
attempted to have Attorney General ``Sessions reverse his
recusal [and] take control of the Special Counsel's
investigation.''\78\ The President repeatedly tried to order
Attorney General Sessions to interfere in or limit the Special
Counsel investigation, including meeting with Sessions alone
and ``suggest[ing] that Sessions should `unrecuse' from the
Russia investigation,''\79\ and attempting to send a message
through campaign advisor Corey Lewandowski asking that
``Sessions limit the scope of the Russia investigation.''\80\
The President's ``position as the head of the Executive Branch
provided him with unique and powerful means of influencing
official proceedings, subordinate officers, and potential
witnesses.''\81\ This conduct also included discouraging
associates such as his former personal attorney, Michael Cohen,
from cooperating by using ``inducements in the form of positive
messages in an effort to get Cohen not to cooperate, and then
turn[ing] to attacks and intimidation to deter the provision of
information or undermine Cohen's credibility once Cohen began
cooperating.''\82\ This also included using his private
attorneys to dangle potential pardons to discourage former
campaign chairman Paul Manafort from cooperating, such as by
having Rudolph Giuliani make ``repeated statements suggesting
that a pardon was a possibility for Manafort, while also making
it clear that the President did not want Manafort to `flip' and
cooperate with the government.''\83\
---------------------------------------------------------------------------
\78\Id. Vol. II, at 107.
\79\Id. Vol. II, at 51.
\80\Id. Vol. II, at 90.
\81\Id. Vol. II, at 7.
\82\Id. Vol. II, at 154.
\83\Id. Vol. II, at 131.
---------------------------------------------------------------------------
In order to protect the rule of law, the Committee requires
an immediate and more detailed accounting of these and other
actions taken by the President. The Special Counsel ``conducted
a thorough factual investigation in order to preserve the
evidence when memories were fresh and documentary materials
were available.''\84\ As a result, the Committee has sought
access to the fruits of that work--including investigative
materials, such as interview reports, as well as evidence, such
as contemporaneous notes taken by fact witnesses. The Committee
urgently requires access to those materials to perform its core
constitutional functions. The Special Counsel has expressly
noted the need to avoid ``preempt[ing] constitutional processes
for addressing presidential misconduct,''\85\ and affirmed that
``Congress can validly make obstruction-of-justice statutes
applicable to corruptly motivated official acts of the
President without impermissibly undermining his Article II
functions.''\86\ If the Committee is to proceed, it requires
the unredacted Mueller Report and underlying materials without
further delay.
---------------------------------------------------------------------------
\84\Id. Vol. II, at 2.
\85\Id. Vol. II, at 1.
\86\Id. Vol. II, at 171.
---------------------------------------------------------------------------
As the Special Counsel further noted, the Department has a
policy against indicting a sitting president, which the Special
Counsel ``accepted for purposes of exercising prosecutorial
jurisdiction.''\87\ Congress is therefore the only body able to
hold the President to account for improper conduct in our
tripartite system, and urgently requires the subpoenaed
material to determine whether and how to proceed with its
constitutional duty to provide checks and balances on the
President and Executive Branch. Otherwise, the President
remains insulated from legal consequences and sits above the
law. As the Special Counsel emphasized, in our system, ``no
person in this country is so high that he is above the
law.''\88\
---------------------------------------------------------------------------
\87\Id.
\88\Id. Vol. II at 181-82 (citations, quotation marks and brackets
omitted).
---------------------------------------------------------------------------
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress, the Committee's May 2, 2019 hearing on
``Oversight of the U.S. Department of Justice: Report by
Special Counsel Robert S. Mueller, III on the Investigation
Into Russian Interference in the 2016 Presidential Election and
Related Matters'' was used to develop this Report. Attorney
General Barr was scheduled at appear at this hearing, but
failed to do so. In addition, the Committee held a related
hearing on February 8, 2019 entitled ``Oversight of the U.S.
Department of Justice.'' Matthew Whitaker, Acting Attorney
General, on behalf of U.S. Department of Justice, was the sole
witness. The hearing considered various matters, including the
Justice Department's role with respect to Special Counsel
Mueller's investigation and his then-anticipated report.
Lastly, the Committee's Subcommittee on the Constitution,
Civil Rights, and Civil Liberties held a hearing on March 27,
2019 on ``Examining the Constitutional Role of the Pardon
Power.'' The witnesses included Caroline Fredrickson,
President, American Constitution Society for Law and Policy;
Justin Florence, Legal Director, Protect Democracy; Andrew
Kent, Professor of Law, Fordham University School of Law; and
James Pfiffner, University Professor in the Schar School of
Policy and Government, George Mason University. Despite the
Committee's repeated outreach, it was unable to secure a
Department witness from the Office of the Pardon Attorney for
the hearing. The hearing considered the potential
constitutional and legal limits on the president's power to
grant clemency.
Committee Consideration
On May 8, 2019, the Committee met in open session and
ordered the Report favorably reported with an amendment, by a
rollcall vote of 24 to 16, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of the Report:
1. A question of consideration raised by Mr. Sensenbrenner
was agreed to by a rollcall vote of 22 to 12.
2. An amendment by Mr. Nadler to the Amendment in the
Nature of a Substitute describing the Committee's response to:
(1) a letter received by the Committee on the evening of May 7,
2019 from Assistant Attorney General Stephen E. Boyd requesting
the Committee hold the subpoena in abeyance and delay any vote
on whether to recommend a citation of contempt for
noncompliance with such subpoena; and (2) a letter received by
the Committee on the morning of May 8, 2019 from Assistant
Attorney General Boyd stating that the President has asserted
executive privilege over the entirety of the subpoenaed
materials and that this was a protective assertion of the
privilege passed by a rollcall vote of 20 to 12.
3. A motion by Mr. Nadler to report the Committee Report
for the Resolution Recommending that the House of
Representatives Find William P. Barr, Attorney General, U.S.
Department of Justice, in Contempt of Congress for Refusal to
Comply with a Subpoena Duly Issued by the Committee on the
Judiciary, as amended, favorably to the House passed by a
rollcall vote of 24 to 16.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this Report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this Report from the
Director of the Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this
Report contains any new budget authority, spending authority,
credit authority, or an increase or decrease in revenues or tax
expenditures.
Duplication of Federal Programs
No provision of the Report establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, the
purpose of the Report is to enforce the Committee's authority
to subpoena and obtain the unredacted Mueller Report, and its
underlying investigative and evidentiary materials.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, the Report does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Rule of Construction
No provision in this Resolution or Report shall be
construed as a directive for the Attorney General to violate
Federal law or rules, including but not limited to Rule 6 of
the Federal Rules of Criminal Procedure.
Dissenting Views
On the Resolution and Report Recommending to the U.S. House of
Representatives that Attorney General William P. Barr be cited for
contempt of Congress
May 8, 2019
CONTENTS
I. Introduction....................................................24
II. Factual background..............................................25
III. Summary of Special Counsel regulations, investigation, and repor30
IV. Contempt of Congress is not appropriate under the circumstances.31
a. By the Chairman's own admission, the subpoena is
overbroad.......................................... 31
b. The Committee is moving at unprecedented speed, and
by the Chairman's own admission the accommodations
process has yet to take place...................... 32
c. The Chairman's stated rationale for needing the
Report is lacking.................................. 34
d. The Committee's subpoena requires the Attorney
General to violate federal law..................... 36
e. The Department of Justice has been extraordinarily
transparent. In contrast, the Chairman refused the
Department's accommodations and negotiations and is
plowing forward with contempt proceedings.......... 37
f. Contempt is a rare and extreme remedy. Given the
Committee's rejection of the Attorney General's
efforts at accommodation and the Committee's
unprecedented timeframe, contempt is premature..... 39
g. More appropriate and effective avenues exist to
pursue this information............................ 40
V. Conclusion......................................................40
I. Introduction
On May 6, 2019, Chairman Nadler noticed a business meeting
to consider a report to the U.S. House of Representatives
holding Attorney General William P. Barr in contempt of
Congress for failing to fully comply with a congressional
subpoena (the ``subpoena'') by the House Committee on the
Judiciary (the ``Committee''). The celerity of the Chairman's
decision to take this step is unprecedented and unwarranted--
the temerity of the actions demanded of the Attorney General
even more so because they demand that he violate federal law.
On March 22, 2019, Special Counsel Robert S. Mueller, III
(the ``Special Counsel'') delivered his report (the ``Report''
or the ``Mueller Report'') on Russian interference in the 2016
election to the Attorney General. On March 25, 2019, the
Chairman requested the full Report from the Attorney General.
On April 18, 2019, the Attorney General provided the Report to
the Chairman and the public. This version of the Report
contained four types of redactions consistent with the law and
to protect United States Department of Justice (the
``Department'') equities, including ongoing prosecutions. The
Department also offered to the Chairman a chance to review a
less-redacted version of the report. On April 19, 2019, the
Chairman publicly refused the Department's offer and issued the
subpoena for the full Report and its underlying evidence. On
May 6, 2019, just 17 days later, the Chairman announced a
Committee vote to hold the Attorney General in contempt of
Congress for not fully complying with the subpoena.
The Chairman's haste to hold the Attorney General in
contempt has not allowed for any accommodations between the
Committee and the Attorney General. This process--a staple of
congressional oversight for generations--is imperative to
filing suit in federal court attempting to have a subpoena
enforced.
The Chairman's rush to contempt is not an action befitting
the Committee. Such action underscores the tenuous legal
strategy that the Chairman advocates. Setting substantive
arguments aside, solely on the bases of precedent,
constitutional norms, and the general notion that Congress
should not encourage the populace--let alone the chief law
enforcement officer of the nation--to violate federal law, the
prognosis for an outcome favorable to the Chairman's legal
position is dim.
II. Factual Background
According to the contempt citation, the Committee ``is
currently engaged in an investigation into alleged obstruction
of justice, public corruption, and other abuses of power by
President Donald Trump, his associates, and members of his
Administration.'' This investigation is an abuse of
congressional oversight authority.\2\ The power to investigate
and prosecute crimes is reserved for the executive branch.\3\
The Chairman has failed to articulate a valid legislative
purpose for his sweeping demands of the executive branch and
the Attorney General.\4\
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\2\Letter from Hon. Doug Collins, Ranking Member, H. Comm. on the
Judiciary, to Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary
(Mar. 7, 2019) available at https://republicans-judiciary.house.gov/
press-release/collins-to-nadler-democrat-investigation-an-abuse-of-
power-assault-on-rule-of-law/ (last visited May 7, 2019).
\3\Id. at 3 (citing Kilburn v. Thompson, 103 U.S. 168 (1881); Quinn
v. U.S., 349 U.S. 155, 161 (1955)).
\4\Id at 2 (citing Wilkinson v. United States, 365 U.S. 399 (1961).
---------------------------------------------------------------------------
In February 2019, media reports indicated the Special
Counsel was nearing the end of his investigation. On February
22, 2019, the Chairman and other Democratic leaders wrote the
Attorney General expressing ``in the strongest possible terms,
our expectation that the Department of Justice will release to
the public the report of Special Counsel Mueller submits to
you--without delay and to the maximum extent permitted by
law.''\5\ On March 14, 2019, H. Con. Res. 24 was agreed to in
the House, directing that the Report would be made available to
the public and Congress. On March 22, 2019, the Attorney
General notified the Chairmen and Ranking Members of the House
and Senate Judiciary Committees (the ``Judiciary Committees'')
the Special Counsel had concluded his investigation and
submitted to the Attorney General a confidential report, as
required under the pertinent regulations.\6\ The Attorney
General also confirmed the Special Counsel did not take any
action contrary to Department practices.\7\ The Attorney
General made this communication to Congress public, something
he is not required to do under the regulations.
---------------------------------------------------------------------------
\5\Letter from Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary; Hon. Adam Schiff, Chairman, H. Permanent Select Committee on
Intelligence; Hon. Elijah E. Cummings, Chairman, H. Committee on
Oversight & Reform; Hon. Eliot Engel, Chairman, H. Foreign Affairs
Comm.; Hon. Maxine Waters, Chairwoman, H. Comm. Financial Serv.; Hon.
Richard Neal, Chairman, H. Ways & Means Comm. to Hon. William P. Barr,
Attorney General, U.S. Dep't of Justice (Feb. 22, 2019).
\6\Letter from Hon. William P. Barr, Attorney General, U.S. Dep't
of Justice to Hon. Lindsey Graham, Chairman, S. Comm. on the Judiciary;
Hon. Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary; Hon.
Jerrold Nadler, Chairman, H. Comm. on the Judiciary; Hon. Doug Collins,
Ranking Member, H. Comm. on the Judiciary (Mar. 22, 2019).
\7\Id.
---------------------------------------------------------------------------
On March 24, 2019, the Attorney General wrote to the
Judiciary Committees to provide the Special Counsel's principal
conclusions. He said the Special Counsel found no conspiracy or
coordination between Donald Trump's campaign and Russia.\8\ He
said the Special Counsel did not reach a conclusion on
obstruction: ``The Special Counsel states that `while this
report does not conclude that the President committed a crime,
it also does not exonerate him.'''\9\ The Attorney General and
the Deputy Attorney General reviewed the evidence and concluded
there was not enough evidence to charge the President with
obstruction.\10\ An Office of Legal Counsel opinion stating a
sitting president cannot be indicted was not a factor in the
Attorney General's decision.\11\
---------------------------------------------------------------------------
\8\Letter from Hon. William P. Barr to Hon. Lindsey Graham,
Chairman, S. Comm. on the Judiciary, Hon. Dianne Feinstein, Ranking
Member, S. Comm on the Judiciary, Hon. Jerrold Nadler, Chairman, H.
Comm. on the Judiciary, & Hon. Doug Collins, Ranking Member, H. Comm.
on the Judiciary (Mar. 24, 2019).
\9\Id.
\10\Id.
\11\Id.
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On March 25, 2019, the Chairman and other Democratic
leaders wrote the Attorney General ``formally request[ing] that
[he] release the Special Counsel's full report to Congress no
later than Tuesday, April 2. We also ask that [the Attorney
General] begin transmitting the underlying evidence and
materials to the relevant committees at that time.''\12\ In
this letter, the Chairman and other Democratic leaders failed
to state a valid legislative purpose for their request.\13\ On
March 29, 2019, the Attorney General wrote to the Judiciary
Committees about the release of the Special Counsel's
report.\14\ He said the Judiciary Committees would receive the
report in mid-April. If not sooner.\15\ He also said he was
coordinating with the Special Counsel and the Deputy Attorney
General on redactions to ensure compliance with the law and
Department regulations requiring the protection of: (1) grand
jury material; (2) classified material; (3) ongoing
investigative material; and (4) ``information that would unduly
infringe on the personal privacy and reputational interests of
peripheral third parties.''\16\ Lastly, the Attorney General
offered to testify before the Senate Judiciary Committee on May
1, 2019, and the Committee on May 2, 2019.\17\
---------------------------------------------------------------------------
\12\Letter from Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary; Hon. Adam Schiff, Chairman, H. Permanent Select Committee on
Intelligence; Hon. Elijah E. Cummings, Chairman, H. Committee on
Oversight & Reform; Hon. Eliot Engel, Chairman, H. Foreign Affairs
Comm.; Hon. Maxine Waters, Chairwoman, H. Comm. Financial Serv.; Hon.
Richard Neal, Chairman, H. Ways & Means Comm. to Hon. William P. Barr,
Attorney General, U.S. Dep't of Justice (Mar. 25, 2019).
\13\Id.
\14\Letter from Hon. William P. Barr to Hon. Lindsey Graham,
Chairman, S. Comm. on the Judiciary, Hon. Dianne Feinstein, Ranking
Member, S. Comm. on the Judiciary, Hon. Jerrold Nadler, Chairman, H.
Comm. on the Judiciary, & Hon. Doug Collins, Ranking Member, H. Comm.
on the Judiciary, Mar. 29, 2019.
\15\Id. at 1.
\16\Id. at 1.
\17\Id. at 2.
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On April 1, 2019, the Chairman and other Democratic leaders
sent a letter to the Attorney General demanding the full
Mueller Report.\18\ This letter failed to state a legislative
purpose for requiring the Report.\19\ On April 11, 2019,
Speaker of the House Nancy P. Pelosi (the ``Speaker''), the
Chairman, and other Democratic leaders wrote the Attorney
General claiming that Congress is entitled to the full Report
and among other things, ``to express profound concern about
your [the Attorney General's] comments before the Senate
Appropriations Committee regarding your apparent review of the
investigation into Russia's interference in the 2016
election.''\20\ Also on April 11, 2019, the Chairman wrote to
the Attorney General reiterating his request for the
Report.\21\ This letter also did not provide a valid
legislative purpose for requiring the Report.\22\
---------------------------------------------------------------------------
\18\Letter from Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary; Hon. Adam Schiff, Chairman, H. Permanent Select Committee on
Intelligence; Hon. Elijah E. Cummings, Chairman, H. Committee on
Oversight & Reform; Hon. Eliot Engel, Chairman, H. Foreign Affairs
Comm.; Hon. Maxine Waters, Chairwoman, H. Comm. Financial Serv.; Hon.
Richard Neal, Chairman, H. Ways & Means Comm. to Hon. William P. Barr,
Attorney General, U.S. Dep't of Justice (Apr. 1, 2019).
\19\Id.
\20\Letter from Hon. Nancy Pelosi, Speaker, H. of Representatives,
Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary; Hon. Adam
Schiff, Chairman, H. Permanent Select Committee on Intelligence; Hon.
Charles E. Schumer, S. Democratic Leader; Hon. Dianne Feinstein,
Ranking Member, S. Comm. on the Judiciary; Hon. Mark Warner, Vice
Chairman, S. Select Comm. on Intelligence to Hon. William P. Barr,
Attorney General, U.S. Dep't of Justice (Apr. 11, 2019).
\21\Letter from Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary to Hon. William P. Barr, Attorney General, U.S. Dep't of
Justice (Apr. 11, 2019).
\22\Id.
---------------------------------------------------------------------------
On April 18, 2019, the Attorney General released the Report
with appropriate redactions to Congress and the public. The
Attorney General also offered certain Members of Congress the
opportunity to view in camera a less-redacted version of the
Report (containing only grand-jury materials as redactions).
The version offered to certain Members--which the Chairman has
refused to see--would ``permit review of 98.5% of the [R]eport,
including 99.9% of Volume II, which discusses the President's
actions.''\23\ The same day, April 18, 2019, the Chairman
signed a subpoena duces tecum to the Attorney General.\24\ On
April 19, 2019, Committee staff for the majority served the
Attorney General with the previously signed subpoena.\25\ Also
on April 19, 2019, the Speaker, the Chairman, and other
Democratic leaders wrote to the Attorney General informing him
that ``your [the Attorney General's] proposed accommodation--
which among other things would prohibit discussion of the full
report, even with other Committee Members--is not
acceptable.''\26\ The correspondence did not state a
legislative purpose for demanding the full Report and other
investigative materials but opined on Congress' need for this
information to fulfill ``its functions as intended in the
Constitution.\27\
---------------------------------------------------------------------------
\23\Letter from Hon. Stephen E. Boyd, Ass't Attorney General, U.S.
Dep't of Justice, to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary (May 1, 2019).
\24\Press Release, H. Comm. on the Judiciary, Chairman Nadler
Issues Subpoena for Full Mueller Report and Underlying Materials,
available at https://judicial.house (last visited May 7, 2019).
\25\Id.
\26\Letter from Hon. Nancy Pelosi, Speaker, H. of Representatives,
Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary; Hon. Adam
Schiff, Chairman, H. Permanent Select Committee on Intelligence; Hon.
Charles E. Schumer, S. Democratic Leader; Hon. Dianne Feinstein,
Ranking Member, S. Comm. on the Judiciary; Hon. Mark Warner, Vice
Chairman, S. Select Comm. on Intelligence to Hon. William P. Barr,
Attorney General, U.S. Dep't of Justice (Apr. 19, 2019).
\27\Id. at 1.
---------------------------------------------------------------------------
On April 25, 2019, the Committee noticed a hearing for May
2, 2019, entitled ``Oversight of the U.S. Department of
Justice: Report by Special Counsel Robert S. Mueller, III on
the Investigation Into Russian Interference in the 2016
Presidential Election; and Related Matters'' with the Attorney
General as the sole witness.\28\ On April 29, 2019, the
Democratic leadership convened a meeting in the Speaker's
office that included the Department and the FBI.\29\ On May 1,
2019, Assistant Attorney General for Legislative Affairs
Stephen E. Boyd (the ``Assistant Attorney General'') wrote the
Chairman explaining the extraordinary steps taken by the
Department to accommodate the Committee's demands for the full
Report, the underlying materials, and the Special Counsel's
investigative files.\30\ Yet, the Department did not close the
door on negotiations.\31\ Also on May 1, 2019, the Committee
held a business meeting to authorize staff questioning of the
Attorney General at the May 2, 2019 hearing.\32\ Outside of
impeachment proceedings, staff has not asked questions of
witnesses before the Committee.\33\ Department staff informally
conveyed to the Committee staff that the Attorney General would
not appear if the Chairman insisted on allowing unprecedented
staff questioning of a cabinet official.\34\
---------------------------------------------------------------------------
\28\Email from Committee Clerk to Members, H. Comm. on the
Judiciary (Apr. 25, 2019 at 2:19 p.m.).
\29\E-mail from H. Comm. on the Judiciary Majority staff, to H.
Comm. on the Judiciary Minority Staff (May 3, 2019, 12:55 p.m.).
\30\Letter from Stephen E. Boyd, Ass't Attorney General, U.S. Dep't
of Justice, to Hon. Jerrold Nadler, Chairman; H. Comm. on the Judiciary
(May 1, 2019).
\31\Id. at 4.
\32\Business Meeting, H. Comm. On the Jud., Motion to permit
additional hour of questioning, equally divided between the Majority
and Minority, by either Members or Committee staff . . . , May 1, 2019
available at https://judiciary.house.gov/legislation/markups/motion-
permit- additional-hour-questioning-equally-divided between-majority-
and (last visited May 7, 2019).
\33\See supra, note 30.
\34\Id.
---------------------------------------------------------------------------
On May 3, 2019, the Chairman responded to the Assistant
Attorney General's May 1, 2019, letter. This response gave the
Department a deadline of May 6, 219--just one business day--to
respond. The letter did not articulate a legislative purpose
for demanding information related to the Special Counsel's
work. Also, on May 3, 2019, majority staff informed minority
staff that a contempt resolution markup would be noticed on May
6, 2019--despite having sent a letter to the Department that
morning and not yet having heard back from the Department on a
response.\35\
---------------------------------------------------------------------------
\35\Phone call between Majority Staff and Minority Staff, May 3,
2019.
---------------------------------------------------------------------------
On May 6, 2019, the Committee noticed a business meeting of
the ``Committee Report for Resolution Recommending that the
House of Representatives Find William P. Barr, Attorney
General, U.S. Department of Justice, in Contempt of Congress
for Refusal to Comply with a Subpoena Duly Issued by the
Committee on the Judiciary.''\36\ Also, on May 6, 2019, the
Assistant Attorney General responded to the Chairman's letter
from May 3, 2019.\37\ The Assistant Attorney General wrote:
``we emphasize the Department of Justice's (Department)
continued willingness to engage in good faith with the
Committee on these issues consistent with its obligation under
the law'' and he invited Committee staff to the Department on
May 8, 2019, ``to negotiate an accommodation that meets the
legitimate interests of each of our coequal branches of
government.''\38\ The Department noted that ``to make the
meeting productive'' the Chairman should view the less-redacted
version of the report in camera in advance.\39\ The Chairman
did not read that version of the Report.
---------------------------------------------------------------------------
\36\Email from Committee Clerk to Members, H. Comm. on the
Judiciary (May 6, 2019, 9:44 a.m.).
\37\Letter from Stephen E. Boyd, Ass't Attorney General, U.S. Dep't
of Justice, to Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary
(May 6, 2019).
\38\Id.
\39\Id. at 2.
---------------------------------------------------------------------------
On May 7, 2019, at 1:00 p.m., Department staff, including
the Assistant Attorney General, came to Capitol Hill to meet
with Committee staff to discuss a path forward. The Assistant
Attorney General said the Department was willing to ease
restrictions on the existing offer.\40\ Specifically, the
Department offered the following: (1) to allow an additional
staffer for each Member currently permitted to view the Report
to be granted access; (2) Members and staff permitted to view
the Report could take their notes with them after viewing the
Report; (3) Members permitted to view the Report could discuss
amongst themselves the lesser redacted version; and (4) the
Department offered to bring the lesser redacted version to
Capitol Hill to facilitate the review process.\41\ This offer
was contingent upon the Committee postponing the vote on
holding the Attorney General in contempt.
---------------------------------------------------------------------------
\40\Meeting between Majority Staff H. Judiciary Comm., Minority
Staff H. Comm. on the Judiciary, & Staff of the U.S. Dep't of Justice,
May 7, 2019, 1:00 p.m. notes on file with the H. Judiciary Comm.
\41\Id.
---------------------------------------------------------------------------
After the Department made this offer, the Chairman's staff
responded favorably, and additional potential accommodations
were discussed. The Department stated they would be happy to
continue discussions the following week, and the parties then
discussed memorializing the agreement.
At some point later in the afternoon and into the evening,
the Chairman decided to press forward with his hastily
concocted contempt proceeding in the Committee. Further, the
Chairman placed additional demands on the Department, demanding
access to the lesser-redacted version of the Report not only
for all Judiciary Committee Members, but also to all Members of
the House Permanent Select Committee on Intelligence. This new
eleventh-hour demand was the first time the Chairman had asked
for this, moving the goalposts further away from the
Department's accommodations.
On May 7, 2019, at approximately 10:00 p.m., after
outlining their accommodations in a letter, the Department
expressed consternation at the Committee for ``escalating its
unmeasurable demands and scheduling a committee vote . . .
[for] contempt of Congress.''\42\ The Assistant Attorney
General warned the President may be forced to invoke executive
privilege due to the nature and volume of the documents
demanded by the subpoena. He made one last entreaty to the
Chairman to hold off on proceeding with a vote on contempt.\43\
---------------------------------------------------------------------------
\42\Letter from Hon. Stephen E. Boyd, Ass't Attorney General, U.S.
Dep't of Justice, to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary (May 7, 2019).
\43\Id.
---------------------------------------------------------------------------
On May 8, 2019, the Assistant Attorney General sent the
Chairman a letter expressing disappointment that the Chairman
rejected the ``Department of Justice's request to delay the
vote of the Committee on the Judiciary on a contempt finding
against the Attorney General this morning.''\44\ The Assistant
Attorney General stated that in taking this significant step,
the Chairman ``terminated our ongoing negotiations and
abandoned the accommodation process with respect to your
[Chairman Nadler's] April 18, 2019, subpoena of confidential
Department of Justice materials related to the investigation
conducted by Special Counsel Robert S. Mueller, III.''\45\ The
Assistant Attorney General concluded by advising the Chairman
that the ``President has asserted executive privilege over the
entirety of the subpoenaed materials.''\46\ He called this a
protective assertion in the vein of a 1996 Office of Legal
Counsel opinion under Attorney General Janet Reno.\47\
---------------------------------------------------------------------------
\44\Letter from Hon. Stephen E. Boyd, Ass't Attorney General, U.S.
Dep't of Justice, to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary (May 8, 2019).
\45\Id.
\46\Id.
\47\Id. (citing Protective Assertion of Executive Privilege
Regarding White House Counsel's Office Documents, 20 Op. O.L.C. I
(1996) (opinion of Attorney General Janet Reno)).
---------------------------------------------------------------------------
III. Summary of Special Counsel Regulations, Investigation, and Report
This Committee has either failed to appreciate or
endeavored to obfuscate what was required by the Special
Counsel, the Attorney General, and the legislature itself
relative to the Special Counsel's investigation and any
resulting work product.
Pursuant to 28 C.F.R. Sec. 600, the Special Counsel
functions as a constituent office of the Department. Incumbent
upon the Special Counsel is the responsibility to exercise
``the full power and independent authority to exercise all
investigative and prosecutorial functions of any United States
Attorney.''\48\ The Special Counsel is required to provide the
Attorney General two categories of notice or documentation: (i)
notification ``of events in the course of [the Special
Counsel's] investigation with respect to Urgent Report[]'', and
(ii) a confidential report, to be delivered after the
conclusion of the Special Counsel's work, ``explaining the
prosecution or declination decisions reached by the Special
Counsel.''\49\
---------------------------------------------------------------------------
\48\28 C.F.R. Sec. 600.7.
\49\28 C.F.R. Sec. 600.8.
---------------------------------------------------------------------------
The Attorney General is required to provide notification to
the Judiciary Committees' chairmen and ranking members with an
explanation for each action in the following three situations:
(i) the appointment of a Special Counsel, (ii) the removal of a
Special Counsel, and (iii) ``upon conclusion of the Special
Counsels [sic] investigation, including, to the extent
consistent with applicable law, a description and explanation
of instances (if any) in which the Attorney General concluded
that a proposed action by a Special Counsel was so
inappropriate or unwarranted under established Departmental
practices that it should not be pursued.''\50\
---------------------------------------------------------------------------
\50\28 C.F.R. Sec. 600.9(a)(l)-(3).
---------------------------------------------------------------------------
Finally, the regulations give the Attorney General
discretion to provide to the public the aforementioned repots
if the Attorney General determines such a release ``would be in
the public interest, to the extent that release would comply
with applicable legal restrictions.''\51\
---------------------------------------------------------------------------
\51\28 C.F.R. Sec. 600.9(c). (emphasis added)
---------------------------------------------------------------------------
The Special Counsel was appointed by the Acting Attorney
General on May 17, 2017.\52\ He provided his confidential
report to the Attorney General on March 22, 2019 pursuant to 28
C.F.R. Sec. 600.8. That same day, pursuant to 28 C.F.R.
Sec. 600.9(a)(3), the Attorney General provided to Congress
notice that the Special Counsel had concluded his investigation
and provided the Attorney General with a confidential
report.\53\
---------------------------------------------------------------------------
\52\See Order No. 3915-2017 by Acting Attorney General Rod J.
Rosenstein.
\53\Letter to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary; Hon. Lindsey Graham, Chairman, S. Comm. on the Judiciary;
Hon. Doug Collins, Ranking Member, H. Comm. on the Judiciary; Hon.
Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary, from
William Barr, Attorney General, U.S. Dep't of Justice (Mar. 22, 2019).
---------------------------------------------------------------------------
By providing that notice, the Attorney General fulfilled
his obligations under the regulations governing the Special
Counsel. Any action by the Attorney General subsequent to March
22, 2019 has been the discretion of the Attorney
General under 28 C.F.R. Sec. 600.9(c).
The decisions to provide the conclusions of the Report to
Congress, to release the Report to the public and to Congress,
and to testify before Congress have been made at the discretion
of the Attorney General. But, in keeping with the Special
Counsel regulation, the Attorney General is not permitted to
release information unless the release ``would comply with
applicable legal restrictions.''\54\ The Committee's demand to
release information subject to grand jury secrecy is a demand
for the Attorney General to violate the law.
---------------------------------------------------------------------------
\54\28 C.F.R. Sec. 600.9(c).
---------------------------------------------------------------------------
IV. Contempt of Congress is Not Appropriate Under the Circumstances
The threat to hold the Attorney General in contempt of
Congress for his refusal to violate the law is unprecedented.
The following sections explain why holding the Attorney General
in contempt is premature, hasty, and without legal basis.
A. BY THE CHAIRMAN'S OWN ADMISSION, THE SUBPOENA IS OVERBROAD
At the Committee business meeting to discuss the contempt
citation, Chairman Nadler acknowledged a difference between the
intent of the subpoena and the language in the actual subpoena
itself. Amidst a discussion about grand jury (``6(e)'')
material--which would require the Attorney General to break the
law in order to produce to the Committee--the Chairman stated:
The reason that was in the subpoena was to increase
our clout in court in getting the 6(e) material,
hopefully with the Attorney General's support, but it
is in no way meant to force him to give that
support.\55\
---------------------------------------------------------------------------
\55\Business Meeting of the H. Comm. on the Judiciary, Committee
Report for Resolution Recommending that the House of Representatives
Find William P. Barr, Attorney General, U.S. Dep't of Justice, in
Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued
by the Committee on the Judiciary, ll6th Cong., 1st Session, May 8,
2019 at 175 [hereinafter May 8 Committee Business Meeting].
This astonishing admission strikes at the heart of the matter:
the Chairman is not interested in obtaining documents through
the accommodations process but rather positioning himself for
litigation.
Further, after acknowledging it was not the Chairman's
intent to include this grand jury material, he stated:
No, we are not going to issue a new subpoena. We have
no intention and never had any intention of enforcing--
of trying to force the Attorney General or anyone else
to give us 6(e) material without going to court.\56\
---------------------------------------------------------------------------
\56\Id.
---------------------------------------------------------------------------
The Chairman also stated:
. . . it has never been our intention, as we have
stated before, to ask the Attorney General to violate
the law. We have always intended and we have made it
very clear that we wanted him to come to court with us
to ask for an exemption to Rule 6(e).\57\
---------------------------------------------------------------------------
\57\Id. at 115.
These statement indicates the Chairman's goal all along was to
go to court and not engage in the accommodations process. If
the Chairman believed the material could not be obtained absent
going to court, he could have carved out language to that
effect in the subpoena or an accompanying cover letter. He did
not do this. Instead, he expects the Attorney General to go to
court seeking this material--something the Chairman has
provided no precedent for--and moved to hold him in contempt in
part because the Attorney General did not do this.
The Chairman also had a chance to issue a subpoena
specifically excluding responsive documents implicating grand
jury material. Such a subpoena would have obviated the fight
over 6(e) material the Committee now finds itself in. On April
3, 2019, the Committee held a business meeting to consider a
resolution authorizing the Chairman to issue the subpoena. At
that business meeting, Mr. Buck offered an amendment stating in
full:
This Resolution shall not be construed as authorizing
the Chairman to issue a subpoena for the production of
information where such production would violate Rule
6(e) of the Federal Rules of Criminal Procedure.\58\
---------------------------------------------------------------------------
\58\Markup of Resolution authorizing issuance of subpoena, H. Comm.
on the Judiciary, 116th Cong., 1st Session, Apr. 3, 2019, Amendment--
Buck 2, available at: https:/docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventlD=109260.
The Chairman voted against the amendment, which was defeated by
a vote of 24-16.
Additionally, the Ranking Member noted the Chairman's
intentions are meaningless when contrasted with the specific
language of the subpoena. The vote on the amendment in the
April 3, 2019 business meeting was an opportunity for the
Chairman to vote on his intent. The Ranking Member stated:
We vote on words on paper, not intent. We vote on
words on paper, and what words on paper say matter, and
it may intend that we ask for this. It may intend we
don't want to do it, but that is not what we vote on in
this Congress.\59\
---------------------------------------------------------------------------
\59\May 8 Committee Business Meeting at 145.
---------------------------------------------------------------------------
B. THE COMMITTEE IS MOVING AT UNPRECEDENTED SPEED, AND BY THE
CHAIRMAN'S OWN ADMISSION THE ACCOMMODATIONS PROCESS HAS YET TO TAKE
PLACE
The speed at which the majority has moved from issuing a
subpoena to voting on contempt is unprecedented and highlights
the unwillingness of the Committee to engage meaningfully with
the Department on reasonable accommodations. The extraordinary
nature of the Committee's actions is highlighted by comparing
the Committee's process here to the prior instances where
Congress held an executive branch official in contempt for
failing to comply with a congressional subpoena.
Here, the Attorney General received the Report on March 22,
2019.\60\ Three days later, on March 25, the Chairman joined a
letter with other Democratic leaders in the House requesting
from the Attorney General an unredacted copy of the Report.\61\
The Attorney General subsequently released a redacted version
of the Report to Congress and the public on April 18. The
Chairman served a subpoena for the unredacted Report on the
Attorney General the next day on April 19.\62\ The subpoena set
May 1, 2019 as the response deadline--less than the two weeks
normally afforded recipients of congressional subpoenas.\63\
After declining multiple accommodations from the
Department,\64\ the Committee scheduled a May 8, 2019 business
meeting to consider a contempt citation--a mere 19 days after
the subpoena was issued and 44 days after the Chairman first
requested an unredacted copy of the Report.
---------------------------------------------------------------------------
\60\Letter to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary; Hon. Lindsey Graham, Chairman, S. Comm. on the Judiciary;
Hon. Doug Collins, Ranking Member, H. Comm. on the Judiciary; Hon.
Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary, from
William P. Barr, Attorney General, U.S. Dep't of Justice, (March 22,
2019).
\61\Letter to Hon. William P. Barr, Attorney General, U.S. Dep't of
Justice from Hon. Jerrold Nadler, Chairman, H. Comm. On the Judiciary,
et al. (March 25, 2019).
\62\Apr. 19, 20 19, Subpoena.
\63\Id.
\64\See, e.g., Letter from Stephen E. Boyd, Ass't Attorney General,
U.S. Dep't of Justice, to Hon. Jerrold Nadler, Chairman, H. Comm. On
the Judiciary (May 6, 2019).
---------------------------------------------------------------------------
By comparison, on June 22, 2012, the House Committee on
Oversight and Government Reform voted to cite then-Attorney
General Eric Holder for contempt of Congress for failing to
comply with a subpoena.\65\ That was 255 days after the
subpoena was issued, and 464 days after the first request to
the Department for information.\66\
---------------------------------------------------------------------------
\65\See H. Rep. NO. 11 2-546, 112th Cong. (2012), available at
https://www.congress.gov/112/crpt/hrpt546/CRPT-112hrpt546.pdf.
\66\Id.
---------------------------------------------------------------------------
On July 25, 2007, the Committee voted to cite former White
House Counsel Harriet Miers for contempt of Congress for
failing to comply with a subpoena.\67\ That was 42 days after
the subpoena was issued and 138 days after the first request
for information.\68\ This table provides a visual comparison.
---------------------------------------------------------------------------
\67\See H. REP. NO. 110-423, 110th Cong. (2007), available at
https://www.congress.gov/110/crpt/hrpt423/CRPT-110hrpt423.pdf.
\68\Id. The full house subsequently voted to issue the contempt
citation on February 14, 2008, 246 days after the subpoena was issued
and 342 days after the first request for information. See Philip
Shenon, ``House Votes to Issue Contempt Citations,'' NY TIMES, Feb. 15,
2008 available at https://www.nytimes.com/2008/02/15/ washington/
15contempt.html?hp.
------------------------------------------------------------------------
First Request Subpoena until
until Contempt Contempt
------------------------------------------------------------------------
William Barr.................... 44 days........... 19 days
Eric Holder..................... 464 days.......... 255 days
Harriet Miers................... 138 days.......... 42 days
------------------------------------------------------------------------
The majority's actions this Congress, in voting to cite the
Attorney General for contempt of Congress 19 days after issuing
a subpoena, is unprecedented and further calls into question
the sincerity of the majority's demands.
Perhaps even more extraordinary than the speed with which
this Committee has moved to hold the Attorney General in
contempt is the Chairman's own admission that the
accommodations process has yet to take place. At the Committee
business meeting to consider the contempt citation, he stated:
The subpoena is written as the beginning of a
dialogue process, as with any other process to talk to
the attorney general and DOJ and ultimately to go to
court, but it's designed to be the foundation of a
dialogue and not designed to force our hand.\69\
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\69\May 8 Committee Business Meeting.
In other words, the dialogue the Chairman claims to have had
prior to the issuance of the subpoena is irrelevant and moot;
it was not until the subpoena was issued did the Chairman
expect to begin a dialogue with the Department. Moreover, while
the subpoena may not have been designed to ``force'' the
Chairman's hand, by rushing to contempt in only 19 days after
the subpoena's issuance--and only one week after the return
date on the subpoena--the Committee is trying to force the
Department's hand.
The Department has acknowledged the Committee demanded
production of ``millions of pages of classified and
unclassified documents, bearing upon more than two dozen
criminal cases and investigations, many of which are
ongoing.''\70\ Such a demand in a compressed timeframe is
simply impossible for the Department to meet. The Chairman
knows this, but nevertheless forged ahead with a contempt
citation.
---------------------------------------------------------------------------
\70\Letter from Hon. Stephen Boyd, Asst. Attorney General, U.S.
Dep't of Justice, to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, May 7, 2019.
---------------------------------------------------------------------------
In making the contrast to the contempt process with
Attorney General Holder, one Member of the Committee Majority
stated the purpose of moving to contempt so quickly was so that
the President would not receive assistance during his re-
election campaign. He stated:
Yes, we simply do not have 400 days to wait before
making sure that we are protected in the 2020 election.
We know that in 2016, the Russians interfered with our
election so that they could help Donald Trump get
elected. Donald Trump will stand for reelection again
in a very short period of time, and we don't have 400
days to wait to determine whether or not we are in
shape to withstand any additional attempts for the
Russians to try to interfere to help Trump get
reelected.\71\
---------------------------------------------------------------------------
\71\May 8 Committee Business Meeting at 148.
---------------------------------------------------------------------------
C. THE CHAIRMAN'S STATED RATIONALE FOR NEEDING THE REPORT IS LACKING
As a rationale for demanding the unredacted Report, the
Chairman's contempt citation notes the Committee is ``currently
engaged in an investigation into alleged obstruction of
justice, public corruption, and other abuses of power by
President Donald Trump, his associates, and members of his
Administration.'' This ``investigation'' began on March 4,
2019, when the Chairman issued document requests to 81
individuals and organizations. The Attorney General was not one
of the 81 recipients.
Just over half of those recipients (52) responded to the
Chairman, and far fewer (23) provided documents to the
Committee. It is unclear if any documents obtained by the
Committee are ``new'' documents, i.e., were not already
submitted to other congressional committees or the Special
Counsel's Office.
It is also unclear if this ``investigation'' is still
ongoing. Since the March 4 launch, the Committee has not taken
any witness testimony. The Chairman has not sent a single
follow-up letter to any of the 81 recipients either requesting
additional information or full compliance with the original
request. The only subsequent Committee activity in this
``investigation'' was the authorization of subpoenas for five
individuals who previously worked in the White House--all who
responded in a timely manner--and the issuance of a subpoena to
Don McGahn after the public release of the Mueller Report.\72\
---------------------------------------------------------------------------
\72\Id.
---------------------------------------------------------------------------
The lack of activity surrounding the Chairman's
``investigation''--and the specific targeting of White House
personnel with subpoenas--makes clear the Chairman does not in
fact intend to investigate ``alleged obstruction of justice,
public corruption, and other abuses of power.''\73\ Rather, the
Chairman intends to specifically target the President and is
using his dormant investigation as an excuse to claim a
legitimate purpose for demanding the unredacted Mueller Report.
---------------------------------------------------------------------------
\73\See supra, note 1.
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The Chairman's contempt citation also states the
``substance of even the redacted Report expressly affirmed
Congress' independent authority to conduct its own
investigation pursuant to its legislative, oversight, and other
constitutional prerogatives.''\74\ This statement does not
contain a citation, and simply stating it does not make it so.
To the contrary, as discussed in the Ranking Member's April 22,
2019 letter to the Chairman, the Mueller Report does not
expressly affirm Congress' independent authority to
investigate.\75\ Rather, the misunderstood section in the
Mueller Report summarizes an esoteric legal argument about
Congress' authority generally to legislate regarding
obstruction of justice laws.\76\
---------------------------------------------------------------------------
\74\See supra, note 2.
\75\Letter from Hon. Doug Collins, Ranking Member, H. Comm. On the
Judiciary, to Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary,
April 22, 2019, available at: https://gallery.mailchimp.com/
0275399506e2bdd8fe2012b77/files/a90397dc-8c16-425d-9cea-9e92ac6a9e7d/
04.22.19\Nadler\DAC.pdf?utm\source=Collins+Judiciary+Press+List&utm\camp
aign=28b1003f7c-EMAIL\CAMPAIGN\2019\04\21\11
\49&utm\medium=email&utm\term=0\ff92df788e-28b1003f7c-168924225 (last
visited May 7, 2019).
\76\Id. at 2.
---------------------------------------------------------------------------
Furthermore, the Chairman has also failed to demonstrate an
overarching need for either the full Mueller Report or its
underlying materials.\77\ Many of the underlying materials can
be obtained via other sources through the Chairman's
``investigation'' he began on March 4. The Committee can
interview many of the same witnesses interviewed by the Special
Counsel's Office, and the Committee can ask for many of the
same documents produced voluntarily to the Special Counsel's
Office. To wit, the Committee has already authorized a subpoena
for Annie Donaldson, whose notes the Special Counsel's Office
relied on heavily in writing the Mueller Report, though the
subpoena has yet to be issued.\78\
---------------------------------------------------------------------------
\77\See supra, note 2.
\78\Business Meeting, H. Comm. On the Jud., Resolution authorizing
issuance of subpoenas, April 3, 2019.
---------------------------------------------------------------------------
The Chairman's contempt citation attempts to describe the
Committee's need for the full Report to ``require[] the most
complete possible understanding of Russia's influence and
hacking operations'' to consider possible future legislation.
Yet, it is this exact material, ``describing the structure and
actions taken by the IRA,'' that the Department offered the
Chairman to review in camera. The Chairman has refused to do
so, deliberately depriving himself access to material he claims
he needs to make determinations about future legislation.\79\
---------------------------------------------------------------------------
\79\See supra, note 20.
---------------------------------------------------------------------------
Moreover, the Chairman's public comments regarding the need
for the full Mueller Report are in stark contrast to the
contempt citation's claim the Committee needs the report for
legislative purposes. For example, on April 7, 2019, the
Chairman said ``Congress has a right to the entire report with
no redactions whatsoever so we can see what's there [ . . . ]
We're entitled to see it because Congress represents the
nation. And Congress has to take action on any of it. So we're
entitled to see all of it.''\80\ On April 19, 2019, the
Chairman said, in a statement, ``My committee needs and is
entitled to the full version of the report and the underlying
evidence consistent with past practice [ . . . ] It now falls
to Congress to determine the full scope of that alleged
misconduct and to decide what steps we must take going
forward.''\81\ These public comments do not support a
consistent need for the full report as outlined in the contempt
citation and give rise to questions as to whether the Chairman
is simply playing politics or whether there is a true need for
full compliance with the subpoena.
---------------------------------------------------------------------------
\80\CBS News.
\81\Politico. Nadler Subpoenas DOJ for Full Version of the Mueller
Report (April 19, 2019), available at https://www.politico.com/story/
2019/04/19/nadler-subpoena-full-mueller-report-1282969 (last accessed
May 7, 2019).
---------------------------------------------------------------------------
D. THE COMMITTEE'S SUBPOENA REQUIRES THE ATTORNEY GENERAL TO VIOLATE
FEDERAL LAW
The underlying quandary foisted upon the Attorney General
by the majority of this Committee and the root of the
disagreement between the Attorney General and the majority is
that by providing the information the subpoena demands, the
Attorney General would be violating federal law. To demand a
version of the Report without grand jury redactions is nothing
less than a directive from Congress to the Attorney General to
break the law.
Under the Federal Rules of Criminal Procedure, material
collected or retained in connection with a grand jury
proceeding must remain secret.\82\ There are several disclosure
exceptions (with subcategories for some of the exceptions).\83\
Nothing in this Committee's recitation of the facts meets any
of the exceptions provided in the rule, read even with the most
expansive interpretation. The U.S. Court of Appeals for the
District of Columbia Circuit recently held the exceptions to
the general rule of secrecy are explicit and narrow; there is
no implied exception for a congressional inquiry.\84\
---------------------------------------------------------------------------
\82\FRCP Rule 6(e)(2).
\83\FRCP Rule 6(e)(3).
\84\See McKeever v. Barr, 920 F.3d 842, 844 (D.C. Cir. 2019)
(``Federal Rule of Criminal Procedure 6(e) `makes quite clear that
disclosure of matters occurring before the grand jury is the exception
and not the rule' and `sets forth in precise terms to whom, under what
circumstances and on what conditions grand jury information may be
disclosed.''') (Internal citations omitted.); see also Andrus v. Glover
Constr. Co., 446 U.S. 608 616-18 (1980) (``Where Congress explicitly
enumerates certain exceptions to a general prohibition, additional
exceptions are not to be implied, in the absence of evidence of a
contrary legislative intent.'').
---------------------------------------------------------------------------
The Federal Rules of Criminal Procedure permit the
disclosure of certain grand jury materials--as one of the
limited exceptions to the general secrecy directive inherent to
grand jury materials--``preliminarily to or in connection with
a judicial proceeding.''\85\ Congressional investigations do
not fit within this exception.\86\
---------------------------------------------------------------------------
\85\FRCP 6(e)(3)(E)(1).
\86\E.g., In re Grand Jury Investigation of Uranium Indus., No. 78-
0173, 1979 WL 1661, at *1 (D.D.C. Aug. 16, 1979) (holding that a
congressional investigation was not ``preliminary to or in connection
with a judicial proceeding.'').
---------------------------------------------------------------------------
The inquiry into the impeachment of a president has been
considered preliminary to a judicial proceeding.\87\ Any other
action proposed or taken by the majority of this Committee does
not fall under the judicial proceeding exception (or any other
exception under the Federal Rules of Criminal Procedure 6(e)
that would grant it access to grand jury material).\88\
---------------------------------------------------------------------------
\87\See, e.g., United States Court of Appeals for the District of
Columbia Circuit, Division No. 94-1, Order in Consideration of the Ex
Parte Motion for Approval of Disclosure of Matters Occurring Before a
Grand Jury, July 7, 1998.
\88\Id.
---------------------------------------------------------------------------
E. THE DEPARTMENT OF JUSTICE HAS BEEN EXTRAORDINARILY TRANSPARENT. IN
CONTRAST, THE CHAIRMAN REFUSED THE DEPARTMENT'S ACCOMMODATIONS AND
NEGOTIATIONS AND IS PLOWING FORWARD WITH CONTEMPT PROCEEDINGS.
On April 18, 2019, the Chairman signed a subpoena duces
tecum compelling the Attorney General to produce an unredacted
version of the Mueller Report as well as all underlying
documents many of which are likely covered by both common law
and constitutional privileges.\89\ On April 18, 2019, the
Assistant Attorney General sent the Chairman a letter offering
for certain Members of Congress and one staff person to review
in camera an unredacted version, save information used during
grand jury proceedings.\90\ The Chairman refused the offer, and
instead, on April 19, 2019, served the subpoena to the Attorney
General.\91\
---------------------------------------------------------------------------
\89\H. Comm. on the Judiciary Subpoena Hon. William P. Barr,
Attorney General, U.S. Dep't of Justice, Apr. 19, 2019, at 2
[hereinafter Apr. 19, 2019, Subpoena].
\90\Letter to Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary; Hon. Lindsey Graham, Chairman, S. Comm. on the Judiciary;
Hon. Doug Collins, Ranking Member, H. Comm. on the Judiciary; Hon.
Dianne Feinstein, Ranking Member, S. Comm. on the Judiciary, from
Stephen E. Boyd, Ass't Attorney General, U.S. Dep't of Justice, (Apr.
18, 2019).
\91\Apr. 19, 2019, Subpoena.
---------------------------------------------------------------------------
On May 1, 2019, the Assistant Attorney General wrote the
Chairman providing a litany of reasons for not complying with
the subpoena.\92\ The Assistant Attorney General said
compliance with the subpoena was problematic because the
Attorney General had already gone to great lengths to be
transparent by releasing a nearly unredacted version of the
report and offering to testify before the Committee on May 2,
2019.\93\ In addition, ``these requests [referring to the
demands in the subpoena] would pose a fundamental threat to the
confidentiality of law enforcement files and the Department's
commitment to keep law enforcement investigations free of
political interference.''\94\ Finally, the Committee's subpoena
calls for the disclosure of grand jury information, which is
prohibited by law.\95\ The Assistant Attorney General wrote:
\92\Letter from Stephen E. Boyd, Ass't Attorney General, U.S. Dep't
of Justice, to Hon. Jerrold Nadler, Chairman, H. Comm. on the Judiciary
(May 1, 2019).
\93\Id. at 1.
\94\Id. at 2.
\95\Id. at 4.
Rule 6(e) of the Federal Rules of Criminal Procedure
provides that matters occurring before a grand jury
must be kept secret, except in certain specifically
enumerated circumstances. Rule 6(e) contains no
exception that would permit the Department to provide
grand-jury information to the Committee in connection
with its oversight role. Therefore, the Department may
not provide the grand-jury information that the
subpoena requests. The Department has, however,
provided you and the Ranking Member (as well as other
members of leadership in the House and Senate) with
access to a version of the report that redacts only the
grand-jury information that cannot be disclosed under
Rule 6(e).\96\
---------------------------------------------------------------------------
\96\Id. at 4 (internal citations to case law omitted).
Compliance with the Committee's subpoena is contrary to law and
the Chairman is not acting in good faith by declining in camera
review of the virtually unredacted Report.
The May 1, 2019, letter from the Assistant Attorney General
offered to continue the dialogue with the Chairman and his
staff.\97\ Specifically, the Assistant Attorney General wrote:
---------------------------------------------------------------------------
\97\Id. at 4.
In reaching this conclusion, we do not close the door
on engaging with the Committee about potential further
accommodations in response to a properly focused and
narrowed inquiry that is supported by a legitimate
legislative purpose.\98\
---------------------------------------------------------------------------
\98\Id. at 4.
The Chairman did not communicate with the Department in writing
after issuing the Nadler subpoena. No negotiations occurred in
writing between service of the April 19, 2019 subpoena and May
3, 2019, when the Chairman sent a letter to the Attorney
General threatening him with contempt of Congress.\99\ The
Chairman wrote: ``But if the Department persists in its
baseless refusal to comply with a validly issued subpoena, the
Committee will move to contempt proceedings and seek further
legal recourse.''\100\
---------------------------------------------------------------------------
\99\Letter from Hon. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, to Hon. William P. Barr, Attorney General, U.S. Dep't of
Justice (May 3, 2019) [hereinafter the May 3, 2019 Nadler Letter].
\100\Id. at 3.
---------------------------------------------------------------------------
On April 29, 2019, a meeting occurred in the Speaker's
Office involving House Majority leadership, the Department, and
the FBI.\101\ Finally, Committee staff claims to be in contact
with the Department's Office of Legislative Affairs ``in
writing, by telephone, and in person'' almost every day and
sometimes multiple times a day.\102\ We have no information to
substantiate these claims, and the Chairman's May 3, 2019,
letter contains no citations to, or evidence of, these
purported communications.\103\ Similarly, the contempt citation
fails to cite any meaningful negotiations and accommodations
engaged in by the Chairman.\104\
---------------------------------------------------------------------------
\101\E-mail from H. Comm. on the Judiciary Majority Staff, to H.
Comm. on the Judiciary Minority Staff (May 3, 2019, 12:55 p.m.).
\102\Id.
\103\May 3, 2019 Nadler Letter.
\104\See Resolution Recommending that the House of Representatives
Find William P. Barr, Attorney General, U.S. Department of Justice, in
Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued
by the Committee on the Judiciary, May 8, 2019.
---------------------------------------------------------------------------
Accordingly, any impasse in negotiations regarding the
Mueller Report between the Committee and the Department can be
attributed solely to the Committee. The Department has made
multiple accommodations to the Committee, but the Committee has
not budged from its demand of production of the full report and
all associated underlying documents.
The Chairman's contempt citation also references
communications between the Chairman and the Department dating
back to February 2019, more than a month before the Attorney
General received the Mueller Report. These communications are
irrelevant to the negotiations between the Committee and the
Department because the Committee was asking for material that
the Attorney General did not yet have in his possession.
Indeed, neither the Attorney General nor the Committee knew
what information the Report would contain. For example, the
Report could have been a single page listing prosecution and
declination decisions, which would have been sufficient for the
Special Counsel to meet his regulatory obligations. The
Attorney General did not receive the Mueller Report until March
22, 2019. On March 25--still without having seen the Report or
knowing its length or contents--the Chairman, for the first
time, formally requested the Report once it was in the Attorney
General's possession. Therefore, communications prior to March
25 are irrelevant to the current negotiations.
F. CONTEMPT IS A RARE AND EXTREME REMEDY. GIVEN THE COMMITTEE'S
REJECTION OF THE ATTORNEY GENERAL'S EFFORTS AT ACCOMMODATION AND THE
COMMITTEE'S UNPRECEDENTED TIMEFRAME, CONTEMPT IS PREMATURE.
Even considering prior criminal contempt of Congress
proceedings, there has not ever been a more brazen edict by the
legislature to the executive branch to break the laws the
former is tasked with crafting and the latter is charged with
enforcing. The speed at which the majority of this Committee
has both made demands and, without hesitation, rejected any
attempt by the Attorney General at accommodation is
unprecedented. The majority of this Committee's continuous
insertion of the word ``accommodation'' in every demand letter
to the Attorney General does not eo ipso mean there has been
any good-faith effort to negotiate with him or his staff. The
traditional attempts at compromise, respect for separation of
powers, and substantive exchange and negotiation have been
abandoned by the majority of this Committee.
We believe the Chairman threatens to undermine the
collegiality of this Committee by holding the Attorney General
in contempt of Congress when he has already demonstrated his
commitment to transparency through the release of the Mueller
Report to the public generally, his provision of a less-
redacted Report to select Members of Congress, and his offer to
testify before the Committee. At every phase, he has been met
with the kneejerk response by the Chairman that his overtures
were insufficient. In the few contempt of Congress proceedings
that have been brought against an executive agent or department
head, there have been significantly greater efforts to
negotiate. We believe the Chairman should not hasten to a
contempt of Congress action simply because the Attorney General
has not acquiesced to his every whim but, instead, has
fulfilled his duty to enforce the laws drafted by Congress.
Furthermore, the Attorney General has fulfilled his duty under
the pertinent regulatory framework. The encouragement for him
to neglect these duties--and, in fact, violate the law--is
beneath the integrity of this body.
G. MORE APPROPRIATE AND EFFECTIVE AVENUES EXIST TO PURSUE THIS
INFORMATION
There are alternatives to a contempt citation that provide
more appropriate and effective means for seeking access to the
requested information under the circumstances here. If the
Chairman was serious about gaining access to the information
requested in the subpoena, as opposed to simply trying to pick
fights with the Executive Branch for the sake of headlines, it
would pursue these alternative avenues rather than hold the
Attorney General in contempt.
First, Congress can amend the law to create an exception to
Rule 6(e) of the Federal Rules of Criminal Procedure that would
allow for Congress to gain access to grand jury materials. As
described above, the current law prohibits the Attorney General
from giving grand jury materials to Congress. The Chairman has
not taken this step.
Second, if the Chairman sincerely believes, despite the
plain language of the law and D.C. Circuit precedent, Congress
is lawfully entitled to the requested materials, the Committee
can seek to enforce the subpoena in court by asking for a civil
judgment declaring the Attorney General is obligated to comply
with the subpoena.\105\ As described above, however, the
Committee would likely lose in court because Rule 6(e) does not
include an exception for Congress. The Committee must consider
all litigation risks. Any litigation could result in a court
decision that would set bad precedent for future Congresses and
weaken Congress's power. The best course forward is to engage
meaningfully with the Department on reasonable accommodations.
---------------------------------------------------------------------------
\105\See Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 77-88
(D.D.C. 2008); see also House Rule II(8)(b); 165 CONG. REC. H30 (daily
ed. Jan. 3, 2019) (statement of Rep. McGovern) (``If a Committee
determines that one or more of its duly issued subpoenas has not been
complied with and that civil enforcement is necessary, the BLAG,
pursuant to House Rule 11(8)(b), may authorize the House Office of
General Counsel to initiate civil litigation on behalf of this
Committee to enforce the Committee's subpoena(s) in federal district
court.'').
---------------------------------------------------------------------------
Third, Congress can enact laws to create alternative
mechanisms to enforce congressional subpoenas. For example,
legislation was proposed during the 115th Congress to expedite
enforcement of congressional subpoenas.\106\ That legislation,
``Congressional Subpoena Compliance and Enforcement Act of
2017,'' passed this Committee. We encourage the Chairman to re-
introduce that bill. However, rather than pursue a legislative
agenda, the Chairman continues to pursue a redo of the Special
Counsel's investigation.
---------------------------------------------------------------------------
\106\H.R. 4010, 115th Cong. Sec. 2 (2017).
---------------------------------------------------------------------------
V. CONCLUSION
Fully complying with the Committee's subpoena would require
the Attorney General to break the law. The Department has
offered multiple accommodations to the Chairman, but the
Chairman has been unyielding in his demand for the full Report
and underlying evidence. The Department has offered the
Chairman to review the report in camera, giving the Chairman
access to 99.9 percent of Volume II of the report and 98.5
percent of Volume I of the report. In essence, the Chairman
issued a subpoena for material to which he already has access
but refuses to see.
The Chairman has not articulated a valid legislative
purpose for the materials demanded by the subpoena, nor has he
shown his inability to obtain the required information from any
other source. The two sides are not at an impasse; indeed, the
Department has moved off its negotiating position on multiple
occasions. The Chairman's lack of good faith in negotiating,
impossible deadlines, and a rush to contempt, however, has
swallowed any efforts by the Department to reach a resolution.
For these reasons, enforcement of the subpoena and the
contempt resolution fail constitutionally.
Doug Collins, Ranking Member.
Steve Chabot.
Jim Jordan.
Jim Sensenbrenner.
Louis Gohmert.
Ken Buck.
John Ratcliffe.
Matt Gaetz.
Andy Biggs.
Debbie Lesko.
Ben Cline.
W. Gregory Steube.
Martha Roby.
Mike Johnson.
Tom McClintock.
Guy Reschenthaler.
Kelly Armstrong.