Hamster Wheels and Claims of Privilege at the William Barr Contempt Hearings
“This is to advise you that the President has asserted executive privilege over the entirety of the subpoenaed materials,” Assistant Attorney General Stephen Boyd wrote in a letter sent, on Wednesday morning, to Representative Jerrold Nadler, the chairman of the House Judiciary Committee. The materials in question are redacted portions of the report that Robert Mueller, the special counsel investigating Russian interference in the 2016 election and related issues, submitted to Attorney General William Barr, along with underlying evidence. Barr hadn’t delivered them to the committee by the deadline in the subpoena, which was Monday. One issue was the secrecy of the grand-jury materials; another was the basic hostility of the Trump Administration toward requests of any kind from Congress. Nadler had indicated that the committee would be willing to discuss some limits to the broad request in the subpoena—regarding grand-jury material, in particular—but he’d also scheduled a hearing and a vote for Wednesday on holding Barr in contempt of Congress. Barr responded by asking the White House for a “protective” claim of privilege, and he got it. The vote went ahead: by a margin of twenty-four to sixteen, the committee approved the resolution, sending it to the full House for consideration. No Republican on the committee voted for it; no Democrat voted against it.
Barr had also refused to show up for a committee hearing the previous week, claiming that he objected to being questioned by congressional staff attorneys. On Tuesday, Don McGahn, the former White House counsel, whose exchanges with Trump were part of Mueller’s catalogue of the President’s possible acts of obstruction of justice, was told by the Trump Administration not to respond to a subpoena of materials in his possession, again based on an assertion of executive privilege. As secretive as this Administration has sometimes been, making a formal claim of privilege represents something of a break: more often, and maddeningly, members of the Administration have refused to answer questions on the grounds that, as the former Attorney General Jeff Sessions put it in an appearance before the Senate Intelligence Committee, the President might make such a claim “at some point.” Indeed, it sometimes seems that a central concern of current executive-branch officials, when they testify, is trying to guess whether what they say might anger the President, rather than whether it is actually privileged information. As my colleague Margaret Talbot notes, a contempt for oversight and accountability is one of this Administration’s defining characteristics. The Mueller matter has brought that dynamic to the surface. Nadler, on Wednesday, referred to a “campaign” of obstruction.
Congressional Republicans, as often as not, have responded in Trumpian ways, with accusations of bad faith, intimations of conspiracy, and railing against the perfidy of the media. Representative Doug Collins, of Georgia, the ranking Republican, said on Wednesday that the contempt resolution was a “cynical, mean-spirited” move, and also “craven and insincere politics.” Representative Jim Jordan, Republican of Ohio—he’s the one who habitually fails to wear a jacket—said that it was really an effort to impugn Barr simply because “Democrats are nervous he’s going to get to the bottom of everything.” Representative Matt Gaetz, Republican of Florida, said, of his Democratic colleagues, “why don’t they just jump to the impeachment proceedings like their liberal-media overlords are telling them?”
Republicans also accused Democrats of turning Barr into a pawn in their fights with other Democrats. Gaetz said that those in the Party who “control the levers of power”—he mentioned the Speaker of the House, Nancy Pelosi—had to “generate these little skirmishes to keep the hamsters on the hamster wheel, so their more rambunctious members won’t rush to the floor in search of impeachment.” The logic there is a little elusive. There is tension within the Democratic Party over impeachment; there is also an Administration that defies subpoenas. Gaetz added, “You are using the Attorney General of the United States as a whipping boy because you can’t go after a popular President.” (Trump’s approval rating is at just under forty-three per cent.)
Nadler said that he appreciated “the gentleman’s use of colorful imagery about the hamster.” But there was, in the Democratic position, also some tension between Nadler’s repeated reminders that he is willing to find an “accommodation” to balance Barr’s legal obligations on grand-jury materials with Congress’s oversight interests and the calls from some among his Democratic colleagues to “see it all.” Stephen Boyd, in his letter, said that Nadler’s contempt hearing “terminated” any negotiations between Nadler and the Department of Justice. The Trump Administration’s complete scorn for the committee’s request appears to have left some Democrats with the view that there is no reason for them to move, either. (That is not to say that the positions are parallel: when it comes to the workings of government, transparency is, generally, more welcome than state secrecy.) All of this will end up in court. Meanwhile, the hearing veered more than once into sniping about whether Russian interference was somehow really all President Barack Obama’s fault.
Repeatedly, the Republicans on the committee evoked what Representative Steve Chabot, another Ohio Republican, said should be the “true investigation”—one into the origins of the Russia probe, the dossier assembled by Christopher Steele and funded by the Hillary Clinton campaign, and the F.B.I.’s surveillance of people connected to the Trump campaign. (This is also what Jordan meant by “everything.”) The F.B.I.’s inspector general is working on a report on those questions, which include issues that should not be lightly dismissed, such as the process for obtaining Foreign Intelligence Surveillance Act warrants.
In the context of the hearing, though, those matters were reduced to a reason to get angry about any and all subpoenas. And, in this Administration, anger seems to serve as an excuse for just about everything. At one point, Nadler got at what may be the central drama of the Trump Administration: Who is it is who is able, when asked by Trump to do something that is unlawful or wrong, to say no? Barr, Nadler said, had shown that “he is not that person.”