US attorney-general William Barr. Picture: REUTERS/ERIN SCOTT
US attorney-general William Barr. Picture: REUTERS/ERIN SCOTT

Washington — The House judiciary panel’s vote to hold attorney-general William Barr in contempt sets off a potentially long and uncertain process for Democrats trying to obtain more information on Robert Mueller’s Russia probe.

Judiciary chair Jerrold Nadler — who warned on Wednesday that “we are now in a constitutional crisis” — emphatically cast the decision to hold the attorney-general in contempt as a battle between democracy and tyranny as Democrats face up to US President Donald Trump’s decision to ignore their subpoenas.

Yet Democrats have not yet settled on a timetable for a contempt vote in the full house or even a specific plan for going to court to enforce the subpoena. Nadler, a New York Democrat, told reporters that “probably” the next step after a vote by the full House would be to pursue a civil contempt case against Barr, but he wouldn’t rule out pursuing criminal contempt as well.

Barring a breakthrough, the matter of what the House is entitled to receive in the case of the fully unredacted Mueller report and the underlying issues is likely to find its way to the US supreme court.

Here is a look at how things may play out.

Pelosi sets the next step: a House vote

House speaker Nancy Pelosi will make the decision on when to call a full House vote on the contempt measure. The House judiciary panel voted 24-16 on Wednesday to advance the measure.

Nadler said the contempt resolution would go to the House floor “rapidly”, though he didn’t know if it would be as soon as next week. The contempt resolution would empower Pelosi “to take all appropriate action to enforce the subpoena”. She said at a Washington Post event on Wednesday that Barr should be held in contempt and that impeaching the attorney-general is “on the table”.

Barr has refused to allow more than two members of the judiciary committee to see even the partly unredacted report — let alone the grand jury material — a proposal the Democrats dismissed as worthless

A committee report issued to back up the contempt finding said Congress “urgently requires” the full Mueller report to determine how to proceed, and to provide checks and balances on the president. “Otherwise, the president remains insulated from legal consequences and sits above the law,” the report said.

Trump, acting on Barr’s advice, formally asserted executive privilege on Thursday to block the release of more Mueller-related information.

US justice department spokesperson Kerri Kupec said in a statement that the department had engaged in “good faith” negotiations with the judiciary committee but that Nadler “short-circuited these efforts” by proceeding with the contempt vote. That “forced the president to assert executive privilege to preserve the status quo”, Kupec said.

Court action could last beyond 2020 unless expedited

In other cases, when Congress is trying to hold an executive branch officer in contempt for non-compliance, law makers have made a criminal referral to a US attorney — but since the target is Barr, that option is problematic.

That leaves the courts, which can be a lengthy process with the potential to last for months or years, potentially pushing any resolution until after the 2020 elections. In some high-profile cases, the judicial branch has agreed to expedite the appeals process.

“How long it will take to resolve depends entirely on the willingness of the supreme court to expedite its review,” said former acting US solicitor-general Walter Dellinger, who served in in the Clinton administration. “It need not take forever and a day.”

Now a partner in the Washington office of O’Melveny & Myers, Dellinger cited the high court’s quick resolution of the Bush vs Gore 2000 presidential election recount dispute, decided in a matter of days, and its accelerated handling of president Richard Nixon’s executive privilege fight over recordings of Oval Office conversations.

Yet Washington appellate lawyer David Rivkin countered that he sees a protracted battle taking shape, one that’s unlikely to end before the next election.

“I think Congress is overplaying its hand,” Rivkin, who co-chairs the appellate practice group at BakerHostetler, said, predicting the executive branch would win but not before the 2020 election. To rule otherwise would fundamentally unbalance the separation of powers, making the president inferior to Congress, he added.

So which side has the upper hand?

Nadler said he is convinced the House will win based on precedents going back to Nixon’s impeachment inquiry.

But Republicans note that Nadler has yet to open a formal impeachment inquiry, and argue Nadler is simply trying to tar Barr’s reputation even as Barr carries out his own probe into whether anti-Trump bias influenced the justice department’s actions in 2016. And they also fault the subpoena for including grand jury information protected by law, saying that put Barr in the position of breaking the law to comply with the subpoena.

Nadler dismissed that line of attack, saying his aim was for Barr to back a court order allowing the grand jury information to be turned over confidentially to the committee, which he said would strengthen the committee’s court case.

Barr has refused to allow more than two members of the judiciary committee to see even the partly unredacted report — let alone the grand jury material — a proposal the Democrats dismissed as worthless.

Trump is resisting Democrats in several other fights

On Tuesday, the administration told former White House counsel Don McGahn not to comply with a subpoena from House Democrats to turn over documents, saying that Trump may want to assert executive privilege. A lawyer for McGahn, William Burck, said he told his client to honour the White House request, unless the committee and Trump administration reach an agreement.

The Jjudiciary panel wants more information from McGahn after Mueller documented several episodes involving McGahn that the special counsel examined as possible examples of obstruction of justice.

Nadler also wants to hear testimony from Mueller. House Democrats have talked about a possible May 15 hearing with Mueller, who is still technically the special counsel even though his investigation has been closed. Last weekend, Trump tweeted that Mueller shouldn’t testify to Congress.

And the House intelligence committee issued a subpoena on Wednesday for the counter-intelligence materials in Mueller’s report, as well as the underlying evidence. House intelligence chair Adam Schiff, a California Democrat, said the panel’s earlier requests were met with “silence or outright defiance” by the justice department.

Separately, Democrats on the House ways and means committee have formally requested the past six years of Trump’s tax returns. On Monday, US treasury secretary Steven Mnuchin formally rejected their request.

“I have determined that the committee’s request lacks a legitimate legislative purpose,” Mnuchin said. “The department may not lawfully fulfill the committee’s request.”

In a statement after Mnuchin released his letter, ways and ceans chair Richard Neal said he would “consult with counsel and determine the appropriate response”.

Neal could issue a subpoena, sue or do both, said Steve Rosenthal, a senior fellow at the Urban-Brookings tax policy centre. Either process is likely to take months, he added, which could make it difficult to get the case before the supreme court in the current session, which typically ends in June.