The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


"William Barr vs. Eric Holder: A Tale of Two Attorneys General"

An article by Stanford Prof. Michael McConnell.


I haven't followed the Barr subpoena controversy closely (and I didn't follow the Holder controversy, back in the day), but I trust Prof. McConnell's judgment a great deal, so I thought I'd pass along his National Review Online article:

Speaker of the House Nancy Pelosi has declared it a "constitutional crisis" that Attorney General William Barr refuses to divulge the small parts of the Mueller report that contain grand-jury material. By a straight party-line vote, the House Judiciary Committee voted to hold Barr in contempt of Congress.

What did Pelosi think when Barr's predecessor, Eric Holder, refused to divulge documents to a congressional committee and was held in contempt? "Ridiculous!" she said. What did Holder and Obama say? That the House subpoena was a violation of "separation of powers." …

What is the legal or constitutional difference between Holder's refusal to provide documents and Barr's?

Here is the background of the Holder contempt. The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), a unit of Holder's Department of Justice (DOJ), conducted an operation called "Fast & Furious," intended to track illegal gun sales. In fact it put hundreds of weapons in the hands of Mexican criminal gangs, leading to the death of an American officer. On February 4, 2011, after news of the operation emerged, Holder's assistant attorney general sent a letter to Congress declaring that the Obama administration had no knowledge of the operation. This letter was false, as Holder later admitted….

On June 19, 2012, President Obama invoked executive privilege, and on the same day, the House committee voted to hold Attorney General Holder in contempt of Congress. The committee vote was 23–17. The full House voted Holder in contempt by a lopsided vote of 255–67, with 17 Democrats voting for the contempt and many more staying home to avoid having to cast a vote.

How does this compare with the Barr contempt? Under regulations written by the Clinton administration, the special prosecutor is instructed to submit a "confidential" report to the attorney general at the end of an investigation. It is entirely the prerogative of the attorney general to decide whether to release any of the report to the public or to Congress. In his discretion, Attorney General Barr decided to release the Mueller report in its entirety, but for two categories of redactions, which were made in conjunction with the Mueller team.

One set of redactions protected innocent third parties, "peripheral to the investigation," whose privacy would be compromised. Barr offered to let members of Congress see a version of the report without these redactions. Five Republicans have accepted the offer, but no Democrats.

The second set of redactions, amounting to an estimated 1.5 percent of the report, applied to grand-jury materials….

That's just an excerpt—read the whole thing.