A vote is scheduled to be held on Wednesday morning to find Attorney General William Barr in contempt of Congress for his repeated failure to produce the full, unredacted Mueller report in response to a congressional subpoena. But overnight, Barr responded with a threat. In a letter written to House Judiciary Chair Jerry Nadler, the DOJ told representatives to back off—or they will shoot the report.
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 the subpoena.
This incredible effort at public blackmail calls on Donald Trump to toss an executive privilege blanket over materials that did not originate within the White House and weren’t generated for communication to his office. It’s a ridiculous and massive expansion of the whole concept of privilege, one that builds on the already expansive “privilege based on the idea that we might one day assert privilege” that Trump has been using from the outset.
Appearing on CNN Wednesday morning, Nadler stated that if Barr does not produce the report, there will be a contempt vote. “The law is very, very clear. There are no complex legal issues here. … The president must not be allowed to operate a lawless administration and become a king.” And while Barr said that the phrase “constitutional crisis” has been overused, we are certainly in one now, with Trump and “his minions” threatening to convert the United States from a democracy to a monarchy.
If Trump acts on Barr’s threat to once again massively expand executive privilege, it would represent a flat end to the idea of congressional oversight, allowing any document or statement made anywhere in the executive branch to be “privileged,” whether or not it represented advice to the president.
Barr’s refusal to obey the subpoena is just one of several such actions, and Trump has made it clear that he has ordered his staff to obey no congressional subpoenas. That alone represents a massive constitutional crisis that will require not just addressing these cases in court, but restructuring Congress’ means of obtaining information if there is to be anything in the future that looks similar to the oversight of the past.
But the threat to lock up the report and supporting materials behind an ever more expansive definition of privilege doubles down on the constitutional challenge. If upheld by the courts, such a broad definition would allow any congressional request to be met with a one-word dismissal. In fact, there would seem to be no boundary between exerting privilege in this case and throwing the same blanket over scientific results coming out of the EPA, or drug results from the FDA, or results of military action. Or the results of an election.
Privilege this expansive is indistinguishable from the ability to operate unchecked and unchallenged. And, as Nadler says, it’s the difference between a democracy and a monarchy.
Not coincidentally, Nadler also indicated that he is no longer sure that special counsel Robert Mueller will appear before Congress on May 15, as had been previously negotiated. Mueller remains an employee of the DOJ—though Nadler confessed he did not know why—and will likely remain an employee for “weeks.” Nadler believes that Trump will attempt to halt any testimony by Mueller, even if he is a private citizen.
House Judiciary Chairman @RepJerryNadler says he is now “less confident” that special counsel Robert Mueller will testify before his committee this month.
— New Day (@NewDay) May 8, 2019