As Democrats push forward with a plan to haul Attorney General William Barr before a federal judge for contempt of Congress, a stunning admission by House Judiciary Committee Chairman Jerrold Nadler could torpedo that case, legal experts say.
The House Judiciary Committee last week took the first step toward holding Mr. Barr in contempt for defying a Congressional subpoena demanding special counsel Robert Mueller’s “full unredacted” report along with all the supporting evidence. Republicans say he even rejected an amendment that sought to carve grand jury information out of the subpoena, issued in March.
But Mr. Nadler now says he “never intended” to force Mr. Barr to release confidential grand jury information, which under federal law is severely restricted in how it can be released.
Republicans were left wondering what the last six weeks’ worth of fighting was about, and legal experts were left wondering whether Mr. Nadler’s case will hold up in court, should be try to ask a judge to enforce his demands.
“The court would be curious as to why the subpoena appears broader than the current position of the House Judiciary Committee,” said Jonathan Turley, a law professor at George Washington University.
Mr. Turley said if Mr. Nadler did not want the attorney general to release the grand jury information, the subpoena would have explicitly stated so.
“There seems to be a disconnect between the language of the subpoena and prior statements of the committee and what was most recently stated by Chairman Nadler,” he said. “Usually subpoenas are quite specific what they are seeking.”
Mr. Nadler told The Washington Times he didn’t need to carve out an exception for grand jury materials.
“The subpoena doesn’t have to say it,” he said. “That’s a nonsense argument and a red herring that the Republicans are raising.”
Grand jury testimony, often called “6E” information because of the section of federal criminal procedure rules that governs it, is usually shielded from disclosure — though there’s a debate about the exceptions to that one.
One clear exception is impeachment, but Democrats are reluctant to take the political heat that would follow from announcing impeachment proceedings.
Another option is to ask the court to unseal the information. There are new questions, raised by an appeals court ruling last month, whether that would be possible — but Mr. Nadler says he wants to explore it.
“The intent of the subpoena always was, and we’ve always stated that we would go to the court and ask for the grand jury information and we would ask the attorney general to accompany us to court, which in every previous situation he has done,” he continued. “This time, he said he wouldn’t do that. He’s given no reason for that, by the way. It is essential that we get this information.”
One Republican on the committee, Rep. Jim Jordan of Ohio, said that simply wasn’t true.
“I think everyone on the committee was under the belief that the subpoena was for everything because that’s what they said,” he told the Times. “And we’ve always said that we want the report released consistent with the law and that’s exactly what Bill Barr did.”
The Justice Department has already signaled it is willing to let lawmakers look at the other information shielded from the public for reasons of privacy, ongoing investigations and classification.
Ross Garber, who teaches political investigations and impeachment at Tulane University School of Law, said he didn’t see any issues with the way Mr. Nadler wrote his subpoena.
“It is not unusual for a subpoena to be issued and have that be broader than what you ultimately expect to be complied with and for there then to be negotiations,” he said.
Rep. Jamie Raskin, Maryland Democrat and member of the House Judiciary Committee, says there’s other evidence that Democrats didn’t want to break the grand jury seal — a 420-0 vote the entire House took in March urging Mr. Barr to release as much of the report as possible.
“The 420-0 vote that took place on the floor of the House of Representatives said the report should be turned over in its entirety minus any material that can’t be legally turned over,” he told The Times.
Mr. Raskin said, though, that he thinks Congress is entitled to see the information.
He said the federal law that dictates the release of grand jury materials only prohibits verbatim quotes from a proceeding, not information gleaned from a procedure.
Mr. Garber said that area of law is a murky.
“There are sometimes disagreements about what exactly is covered,” he said. “Some take a narrow view that is limited only to the testimony taken in the grand jury room. Others say it extends to the identity of witnesses, facts learned from testimony, the issuance of grand jury subpoenas and other information related to the grand jury.”
Still, Mr. Turley said, focusing on the grand jury information could lead Congress away from more fruitful demands, such as broader access to the other categories of information shielded from the public.
Currently Mr. Barr has only made the less-redacted version of the report that does include classified secrets and information about ongoing investigations available to a dozen members of Congress. The six Democrats in that group have refused to look at it.
“The Congress does have oversight authority to demand some of the evidence resisted by the Trump administration,” Mr. Turley said. “Those are strong claims so I’m mystified why they want to bring their claim against Bill Barr before a federal court.”
He said the risk Democrats run if they pursue the wrong avenue is creating a court precedent that could curtail future congressional investigations.
“Congress has been highly circumspect in bringing these types of challenges before a federal court because they don’t want to undermine existing precedent,” he said. “This to me seems quite reckless to risk existing precedent on an uncompelling claim of contempt.”
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