Devastating: Liberal Law Professor Clinically Dismantles Democrats' Contempt Case Against Barr
Left-leaning law professor Jonathan Turley -- who has stood out in recent years as a rare legal analyst unwilling to allow his political views to cloud his constitutional judgments -- has written an absolutely devastating columnaddressing House Democrats' efforts to hold Attorney General Bill Barr in contempt of Congress. Anti-Trump partisans have compiled a list of grievances against Barr, many of them specious, but House Judiciary Committee Chairman Jerry Nadler has chosen to focus the contempt charge on the Attorney General's unwillingness to release a tiny redacted fraction of the Mueller report. Turley says this is "the weakest possible contempt claim," warning that pursuing it will damage the House, not the administration. Here's the core of his argument on the redactions-based contempt complaint:
The problem is that the contempt action against Barr is long on action and short on contempt. Indeed, with a superficial charge, the House could seriously undermine its credibility in the ongoing conflicts with the White House...As someone who has represented the House of Representatives, my concern is that this one violates a legal version of the Hippocratic oath to “first do no harm.” This could do great harm, not to Barr, but to the House. It is the weakest possible case to bring against the administration, and likely to be an example of a bad case making bad law for the House...Barr promised to release as much of the report as possible, and he has delivered. Indeed, he is not expressly given the authority to release the confidential report. Yet, he not only released it but declared executive privilege waived on its content. The key obstruction portion of the report is virtually unredacted. Just 8 percent of the public report was redacted, largely to remove material that could undermine ongoing investigations. The sealed version of the report given to Congress only had 2 percent redacted. Democrats are therefore seeking a contempt sanction on a report that is 98 percent disclosed and only lacks grand jury material.
Barr restricted access to the 98 percent disclosed report, as opposed to the 92 percent public report, due to the inclusion of evidence impacting ongoing prosecutions. He has offered to expand the number of members and staff to review that material but insists on it remaining protected. But this has nothing to do with the redactions. It is the 2 percent solution to a major political dilemma of the left. Faced with a report that rejected the collusion theories of their running narrative, Democrats want to focus on those 2 percent of redactions rather than over 400 pages of findings. So Congress now will ask a court to find civil contempt for Barr refusing to release grand jury information. The District of Columbia Circuit Court of Appeals recently rejected a district court claim to have the “inherent supervisory authority” to disclose grand jury matters because of great public interest. To make matters worse, the Justice Department has now said the president has invoked executive privilege over the entire report, making this contempt claim even less likely to prevail over the long run.
Turley also recalls his own testimony before Congress during Barr's confirmation process, in which he stated that by asking Barr to preemptively pledge to release a completely unredacted version of the Mueller report, Democrats were literally asking the nominee to promise to violate the law: "As a witness, I testified that they were asking Barr to commit to a potential criminal act to secure his own confirmation. The report inevitably would contain some grand jury material, which under the law is information that cannot be publicly released without a court order. It is a crime to unveil such information." As he mentions in a bolded portion of the excerpt above, a powerful federal court recently fortified the precedent that secret grand jury records cannot be made public simply as a means of satisfying significant public interest. Absent following a process dictated by existing law, revealing such information is illegal. House Democrats are seeking to hold America's chief law enforcement officer in contempt of Congress for declining to commit a crime. Bold strategy.
Again, Barr offered to expand the circle of members and staffers who have access to the 98 percent unredacted report, but that hasn't impressed the Democrats either. I'd also note that nobody appears to be making a serious case that the redactions are improper or corrupt or geared toward a "cover up" in any way. Indeed, we know that Robert Mueller's team worked closely with the DOJ team on completing that task. The notion that they decided to bury some smoking gun evidence against the president via a bogus redaction is ludicrous -- especially considering how acutely sensitive Mueller and some of his associates seem to have been to any public perception that they were too soft on Trump. This very much looks like Nadler & Co wanted to hold Barr in contempt -- perhaps to satisfy the frustrated cravings of their base, which I've argued is a root cause of Barr Derangement -- so they decided to conjure up some justifications. They've tipped their hand:
"As of this writing, not one of the six Democrats granted access to what amounts to 99.9 percent of volume II of the Mueller report, which details the president’s behavior as it relates to obstruction of justice, have taken the opportunity to examine it." nationalreview.com/2019/05/muelle…
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[Barr] has made available to top Democrats the entirety of volume II of the Mueller report, save for two full and seven partial lines, which were redacted to protect grand jury secrecy in keeping with federal law...As assistant attorney general William Boyd argued in a letter sent to House Judiciary Committee chairman Jerry Nadler on Monday, Democrats’ refusal to examine the most transparent version of the report that Barr can legally make available, “naturally raises questions about the sincerity of the committee’s interest in and purported need for the redacted material.”
Democrats' risible party line response has been to claim that if those members who've been granted access to the less-redacted version of Mueller's report actually took advantage of that access, it would undermine the party's demands for even more access. Good luck selling that spin. Turley's op/ed also points out how "curious" it is that in spite of their thunderous denunciations of Barr's alleged "lies" to Congress and his outrageous refusal to face questions from Nadler's panel, neither of those seemingly serious accusations were cited as legal underpinnings for the contempt citation. Why not? Because, he writes, "House Democrats know both claims would not withstand even a cursory judicial review." Click through and read his detailed explanations on both issues. The Cliffs Notes version is as follows: Barr's letter to Congress was accurate, he didn't lie to Congress, and he sparred with a Senate committee for hours, only refusing to appear at a hearing in which Democrats insisted on outsourcing their questioning for no defensible reason. "Democrats wanted to manufacture a conflict, and they have succeeded in doing so," Turley correctly concludes. I'll leave you with more damaging hyperbole from the unserious Mr. Nadler:
“We’ve talked for a long time about approaching a constitutional crisis. We are now in it,” House Judiciary Chairman Jerry Nadler said moments after the committee voted to hold Attorney General William Barr in contempt cnn.it/2VqYKvm
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Pelosi agrees with him. But there is no such crisis; still -- if, for the sake of argument, one were to accept the premise that a crisis does exist, re-read Turley's full piece and decide who is responsible for precipitating it. Also, ask yourself why, if they truly believe their own rhetoric, Democratic leadership is still so allergic to moving forward with impeachment. Could it be that they're fearful of a self-inflicted political crisis, which would be far more grave than intoning about an ostensible constitutional one?A
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