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Congress Has Few Options Left To Make Barr Cooperate

(UPDATE: May 8, 2019, 5:02 p.m.): In a 24-16 vote, the House Judiciary Committee advanced a contempt resolution to the House floor. If a majority of the full House approves the measure, Barr will be held in contempt.


On Wednesday, the House Judiciary Committee is slated to vote on whether to hold Attorney General William Barr in contempt of Congress, intensifying congressional Democrats’ ongoing battle with the Trump administration over special counsel Robert Mueller’s report on Russian interference in the 2016 election. The committee’s Democratic chair, Rep. Jerrold Nadler, scheduled the vote after Barr missed Nadler’s deadline for delivering Mueller’s full, unredacted report and its underlying materials to Congress. If the resolution passes committee, it won’t be final until it’s passed by a simple majority in the full House of Representatives — but that doesn’t seem too far-fetched, given that Democratic leaders are still angry about how Barr has handled the rollout of the Mueller report.

A contempt citation would be largely symbolic in this case, however, even though contempt rulings are Congress’s only formal mechanism for enforcing subpoenas. That’s because the Department of Justice is responsible for pursuing criminal contempt charges and it seems unlikely that Barr will sign off on his own prosecution.1 Nevertheless, it’s a dramatic step. Barr would join a small group of senior administration officials who have been held in contempt, according to a 2017 Congressional Research Service tally of contempt procedures since 1980. Only one attorney general — Eric Holder — was held in contempt by the full House, although contempt proceedings were also started against Janet Reno during the Clinton administration.

Few senior officials have been held in contempt

All White House counsel and Cabinet secretaries who faced contempt proceedings and whether the full House held them in contempt, since 1980

Year Name Title House Held in Contempt*
2012 Eric Holder Attorney general
2008 Harriet Miers Former White House counsel
2008 Joshua Bolten White House chief of staff
1998 Janet Reno Attorney general
1996 John Quinn White House counsel
1982 Anne Gorsuch Burford Administrator of the EPA
1982 James Watt Secretary of the Interior
1981 James Edwards Secretary of Energy
1980 Charles Duncan Secretary of Energy

* Held in contempt by the full House following the passage of a committee resolution

Source: Congressional Research Service

But while big contempt showdowns appear to be increasingly common — three of the four senior executive branch officials who have been held in contempt by the full House served in the past two administrations — the changing political landscape may be reducing their impact.

Political scientists Douglas Kriner and Eric Schickler, who have shown that prolonged congressional investigations can lower presidential approval ratings over time, said that a contempt citation could still pack a political punch, particularly if it leads to increased or negative media coverage. But Kriner added that the power of this tool may be diminished by deep polarization in Congress and the president’s unusually steady approval ratings, which so far appear to be impervious to the Democrats’ investigations.

In the past, contempt fights had the potential to turn into a serious presidential liability. “They were used by Congress as a kind of stick to reach an accommodation with the president,” Kriner said. For instance, in the 1980s, Anne Gorsuch Burford, the administrator of the Environmental Protection Agency, was held in contempt after she refused to turn over documents about her agency’s efforts to clean up toxic waste. Political pressure mounted after the bipartisan vote, making Burford seem like a liability to the GOP, and eventually the administration reversed course, turning over the contested documents and forcing Burford to step down.

More recent examples underscore the limitations of contempt citations, though. In 2012, Attorney General Eric Holder was held in contempt of Congress for refusing to turn over papers related to a botched operation where illegal guns were sold to people who were thought to be connected to Mexican drug cartels. Holder left office in 2014 with a relatively low approval rating and the Obama administration eventually turned over the documents after a lengthy court battle, but Holder wasn’t prosecuted or forced to resign, and Kriner said the overall political impact was minimal as the investigation wasn’t covered widely in the media, even after Holder was held in contempt.

While Kriner and Schickler’s research has found that prolonged investigations can drag down presidential approval ratings, the fact that recent presidents’ favorability numbers have stayed pretty steady over time could mean that congressional investigations are less likely to have an impact — if nothing seems to affect approval ratings anymore, it may indicate that voters’ opinions are essentially fixed and a congressional investigation may not be enough to move them. This is particularly true for Trump, whose approval ratings are much lower than those of many other presidents. But even if it’s unlikely that holding Barr in contempt will pull Trump’s approval numbers down, that doesn’t mean the citation can’t be a weapon, Schickler said — it just might inflict a different kind of damage. “The risk for the Democrats with all of these investigations is that public interest wanes,” he said. “Because a contempt vote is dramatic, it can drive and sustain public attention on this idea of a lack of transparency and cooperation from the administration, and make it look like the Democrats are taking action.”

There’s a risk, of course, that the Trump administration will simply continue to stonewall and the Democrats will be forced to escalate the conflict again, which would likely mean opening impeachment hearings for Barr, or even Trump. This could backfire on the Democrats if it’s perceived as overreach, particularly since impeaching Trump remains unpopular overall. But Democrats seem unwilling to back down in the face of a recalcitrant White House — and holding Barr in contempt is one of the few cards they have left to play.


From ABC News:


Footnotes

  1. House Democrats could also vote to issue a civil contempt resolution, which would allow them to sue Barr in the courts. But in the past, this process has taken years. Congress also has the power to arrest or jail people who don’t comply, but that hasn’t happened in almost a century.

Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

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