"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.

Comments

[A nerdy Fred]

As a layman I'm at a handicap reading legal materials. I would enjoy hearing actual lawyers talk about whether FRCP Rule 6(e)(3)(D) applies to the subpoenaed grand jury material.

[Bored Lawyer]

Yes.
Fed.R.Cr.P. 6(e)(2)(B) forbids disclosures of grand jury materials by a whole list of people (including govt. lawyers and persons to whom disclosures were made pursuant to the rules), UNLESS there is some provision for disclosure in the rules.
The rule then lists a bunch of exceptions, none of which apply to a Congressional committee. It also lists exceptions that can be made by a court, but these too are listed specifically, and again would not include a Congressional committee.
Some courts held that the court has inherent power to permit disclosure for good cause. The D.C. Circuit Court of Appeals shot that down in April in its decision in McKeever v. Barr. The ruling is that unless it fits into one of the specific categories listed, then the court may not permit disclosure.
Subpoenas are commands to produce something (here records), but they cannot command disclosure of what is forbidden by law. That is the point here – Rule 6 forbids disclosure of grand jury materials, unless you fall into one of the exceptions, none of which apply here.

[SimonP]

It's not at all clear to me that the congressional subpoena power can be effectively limited by a judicial regulation and administrative regulations derived therefrom.

[Bored Lawyer]

SimonP -- the rules of criminal and civil procedure have the force of law, because Congress has authorized the Supreme Court to promulgate them, and whenever they are amended, there is a period of time that Congress can change the amendments (which it has done occassionally). The Supreme Court and the lower courts have stated that many times.

[Bored Lawyer]

Same thing applies, BTW, to claims of privilege. Privileges are not enacted in the U.S. code. The authority for them derives from Rule 501 of the Rules of Evidence. But no one seriously believes that a valid claim of privilege can be overcome by a subpoena.

[SimonP]

This doesn't seem to respond to my objection. You're effectively saying Congress can direct (and has directed) the other branches not to provide it materials that would otherwise be within its authority to subpoena.

[Armchair Lawyer]

Partially true.

Congress can pass laws, in conjunction with the executive branch. Congress is then bound by those laws, and those laws can limit Congress's power (unless it passes a new law overturning the old one).

Now, if Congress wanted to, it could pass (or attempt to pass) a very specific law granting it the entire Mueller report. That law would override previous laws passed by Congress and signed by the executive (notably Fed.R.Cr.P. 6(e)(2)(B)).

[A nerdy Fred]

Thank you all.

Are Congressional committee members not "officials" as meant in "any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties"?

[Rossami]

re: Are committee members "official"?

I would argue not. Taking that clause apart, they are definitely not federal law enforcement officials. That would be the FBI and similar executive branch agencies. They are not intelligence officials. That would be the CIA, etc. They are not protective officials. That would be the Secret Service. Immigration officials would be ICE. National defense officials would be the Joint Chiefs, et al. National security officials would be the NSA, etc.

The plain wording of that clause seems to me to limit itself to Executive Branch officials (and only some of them). Congress has an oversight role but that oversight role does not automatically grant unlimited access to every possible thing being overseen.

[SimonP]

Congress can pass laws, in conjunction with the executive branch. Congress is then bound by those laws, and those laws can limit Congress’s power (unless it passes a new law overturning the old one).

What this simplistic response obscures is that there are various ways in which Congress may not limit (or expand) its own powers, even by duly enacted law, as is evident in the non-delegation and presentment cases. There are some constitutional authorities (and constraints) that Congress simply can't change.

Congressional authority to subpoena information necessary for it to perform its oversight responsibilities is one of its inherent powers. It has been challenged and weighed against the executive's prerogatives, and there are standards in relevant case law that outline the broad contours of that congressional authority. But suffice it to say that it is patently absurd to argue, as you are doing here, that Congress can leave that power up to the whims of department policy and regulations of the judiciary that pertain just to its own proceedings. If Congress has the authority to subpoena anything, it seems that it must have the authority to subpoena evidence and testimony potentially relating to the malfeasance of the President.

[JesseAz]

Simon, your argument is essentially congess can ignore any law it has ever passed. Think long and hard on that.

[subpatre]

Simon's being . . . disingenuous. His argument is the House of Representatives can ignore laws passed by Congress —House and Senate— and signed by the President.

It's true a legislature can't bind future legislatures, but all are bound by them until they rescind or replace by the same process.

[Stephen Lathrop]

Subpatre, explicit constitutional grants of power are not bound by any act of congress whatever, save a constitutional amendment passed and ratified. The impeachment power is one such grant, and the necessary and proper power to investigate impeachable offenses is part of that.

[Lee Moore]

Stephen Lathrop : explicit constitutional grants of power are not bound by any act of congress whatever, save a constitutional amendment passed and ratified. The impeachment power is one such grant

Correct

and the necessary and proper power to investigate impeachable offenses is part of that

Incorrect. The necessary and proper power is given in Article 1 Section 8 to Congress to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers."

Thus any necessary and proper powers that the House has to help it carry out its Constitutionally granted impeachment power - subpoenas, calling witnesses for evidence in connection with impeachment - are statutory powers granted by Congress in the ordinary lawmaking process. They (unlike the actual power of impeachment itself) are not explicit Constitutional grants of power.

Consequently the House is bound by those laws, unless and until Congress amends the law in accordance with the usual process. (Which in the case of impeaching a President, is likely to involve overcoming a Presidential veto.)

[subpatre]

Lathrop's confused. First, that the House is unbounded by any law.

More important, the House was not granted dragnet powers. They are empowered to investigate for "Treason, Bribery, or other high Crimes and Misdemeanors." There's no there there.

There's no probable cause: no particulars describing the crime, the persons, places, and times of the crime. The House has this power, but they must declare what the 'Treason, Bribery, or other high Crimes and Misdemeanors' actually consist of.

[Stephen Lathrop]

Lee Moore, you do a creditable job in taking on Justice Marshall, but I don't think you can beat him. Marshall:

1st. The clause is placed among the powers of congress, not among the limitations on those powers. 2d. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.

Even your own quote mentions "foregoing powers." In the Constitution, one of the powers mentioned previous to the N&P clause is the impeachment power, which does not require concurrence from the Senate, nor the approval of the President.

So, the powers in question are not just powers of Congress, but of the government, as Marshall said. One such power of the government is the power of impeachment, explicitly vested solely in the House.

Are you ready to assert that the House may impeach, but not investigate first? And your attempt to narrow the N&P to Congress would deny its use to the executive. Which among other things, would seem to strike down the notion of executive privilege.

[Lee Moore]

SL Even your own quote mentions “foregoing powers.” In the Constitution, one of the powers mentioned previous to the N&P clause is the impeachment power, which does not require concurrence from the Senate, nor the approval of the President.

Of course. That's precisely what I said :

Thus any necessary and proper powers that the House has to help it carry out its Constitutionally granted impeachment power – subpoenas, calling witnesses for evidence in connection with impeachment – are statutory powers granted by Congress in the ordinary lawmaking process.

The N&P clause can be used to enact laws that are N&P to bring into execution any of the foregoing powers, including the impeachment power. And I wouldn't dream of arguing that the N&P clause does not enlarge the powers of Congress. It enlarges the powers of Congress to pass laws, including laws that then enlarge the powers of any branch of government. Incuding the House.

But we are not arguing about the N&P clause being able to provide the House with supplementary powers to aid its impeachment powers. That's not in dispute. We're arguing about your conjecture that the House has, directly from the constitution additional investigative powers inherent in its impeachment power, which is doubtful at best, and your even more doubtful, nay absurd, notion that such additional powers are "explicit."

I am confident that the House does have some investigative powers with which it can pursue its undoubted impeachment power, without the assistance of Congress via the N&P clause. There's no doubt that it can invite witnesses to testify, read the newspapers for interesting stories, ask people if they would mind handing over their private papers for review, and so on. Because those are things that anyone may do. The question is , does the House have inherent investigative powers that allow the House to compel witnesses and seize papers ? And that seems unlikely.

The N&P clause while granting additional powers to Congress, also tells us that the drafters had a scheme for how the government might acquire powers that were N&P to carry out its explicit powers. In the absence of a N&P clause, we might infer all sorts of implicit powers - the existence of a N&P clause tells us we don't need to bother. If I may quote from one of the wiki references, immediately after the quote from Marshall you offered -

"Without this clause in the Constitution, there would have been a dispute about whether the express powers imply incidental powers, whereas this clause resolved that dispute by making the incidental powers to be expressed instead of implied."

And finally you have missed the point of McCullogh v Maryland. Which was not about finding secret implicit powers, but defining the scope of the N&P clause. Marshall did not find the power to found a bank inherent in the taxing power. He found the bank a reasonable exercise of Congress's power under the N&P clause.

[Stephen Lathrop]

You are just doubling down Lee. Saying, again incorrectly, that the subpoena power which Congress may exercise in connection with an impeachment investigation is a statutory power.

It is not, and you will not find any source in the Constitution to make it seem otherwise. When the Constitution says the House has the "sole" power of impeachment, it is saying the House does not have to say, "pretty please," to anyone to conduct an impeachment investigation, using all powers necessary to make the investigation effective.

[Lee Moore]

I'd say I was more doubling up than down, since i'm right.

I've already found a clause in the Constitution that says the House can carry out investigations pursuant to its impeachment power, including the power to compel witnesses and seize documents. It's the N&P power, and it gives such incidental powers to the the House if and to the extent that Congress has passed a law to say so.

Meanwhile, you are the guy who is claiming the existence of phantom incidental powers for the House, beyond the express power of impeachment, which are nowhere mentioned in the constitution. Meanwhile claiming that such phantom powers are "express" ! The House has the constitutional power to impeach. Period.

All this - "to anyone to conduct an impeachment investigation, using all powers necessary to make the investigation effective" - you've just made up out of thin air.

So I've got the answer, and you got nothin'. What's even more embarrassing is the very guy you cite to bolster your argument agrees with me ! It's the N&P clause that generates these incidental powers - you get to create a national bank because Congress says so pursuant to its N&P powers not because that power is a phantasm inherent in the taxing power.

[MP]

More succinctly, the power of impeachment can't compel anyone to do anything. It can't even compel the Senate to have a trial. Because "compel" implies the ability to use actual force.

The HoR can vote on impeachment all day long. They can then do what they normally do, in the course of their legislative duties, to have discussions before a vote.

[Stephen Lathrop]

Lee Moore: All this – “to anyone to conduct an impeachment investigation, using all powers necessary to make the investigation effective” – you’ve just made up out of thin air.

Perhaps instead of paraphrasing, I should have quoted John Marshall (again),

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

That from Marshall would defeat your argument, except you apparently cling to an inference you draw from McCulloch v. Maryland. Your inference seems to be that because McCulloch v. Maryland involved making a law, the N&P clause refers only to the Congressional power to make laws. But that is not what the N&P clause says, nor what Marshall said. Instead, the N&P clause:

Section 8 - Powers of Congress. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

See, all the powers, and not just for Congress as a whole, but for any department or officer of the government. Which surely means the N&P is not confined to legislation, because those explicitly covered include many who cannot legislate, but instead exercise non-legislative powers.

The impeachment power is a power explicitly vested in a department of the Government, the House of Representatives, and it is a power unrelated to legislation. It enjoys every bit of the enlargement of means promised by the Necessary and Proper clause, interpreted within it's usual scope.

Subpoenas and fines are appropriate means of compulsion during an investigation. They are plainly adapted to that end. They are not prohibited by the constitution. And they consist with the letter and spirit of the constitution, and especially so with the explicit grant of the impeachment power to the House.

If you still think that's all "thin air," please try to be a little less metaphoric, and a lot more specific.

[Lee Moore]

Come on Stephen, this is not rocket science :

Section 8 – Powers of Congress. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The bit in bold states that what is being granted is a power to Congress to make laws. Nobody else is granted any powers. And the only power granted is a legislative power.

The bit not in bold says what kind of laws Congress is given the power to make. Which include both laws that are N&P for Congress to bring into execution its own powers ("the foregoing powers") and laws that are N&P for other chunks of Government to bring into execution their constitutional powers.

"Michael, you may make a sandwich for yourself and, if you like, you may make one for George."

It is Michael who has permission to make sandwiches, but George may finish up with one if Michael chooses to make one for him.

See, all the powers, and not just for Congress as a whole, but for any department or officer of the government.</i.

I see them. They are George. George might get a sandwich. But he has not been granted permission to make one himself.

Which surely means the N&P is not confined to legislation, because those explicitly covered include many who cannot legislate, but instead exercise non-legislative powers.

Nope. The only constitutional power granted here is to Congress to legislate. But when Congress legislates it may grant statutory powers to the other branches - if those additional statutory powers are N&P to bring into execution those branches' constitutional powers.

[Stephen Lathrop]

So your view, Lee, is that no other division of government, nor any government officer, gets any N&P power enlargement at all, except pursuant to legislation by Congress? Can you point to the legislation which conferred upon the Supreme Court the power to say what the law is? For all I know, maybe such a law exists. Please show it to me.

[subpatre]

At this point, it's obvious Lathrop's convinced there is nothing restraining the House —including laws passed by House, Senate, and President— from ANY action to "investigate". Whips, cattle prods, waterboarding, is all good according to Lathrop as it's 'expressly' in our Constitution. Not.

Lathrop may not be arguing they should use extrajudicial means, but it's the only direction his logic leads.

[Lee Moore]

SL : So your view, Lee, is that no other division of government, nor any government officer, gets any N&P power enlargement at all, except pursuant to legislation by Congress?

Correctamundo. Well done. It's all set out very clearly in black and white in Article 1 Section 8 :

"The Congress shall have power.......[a long list of specified powers, concluding with].....To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

The N&P power is just one of a long lis of powers granted by Section 8 to Congress.

Can you point to the legislation which conferred upon the Supreme Court the power to say what the law is? For all I know, maybe such a law exists. Please show it to me.

The Supreme Court has the power to decide cases and controversies - this is granted directly and explicitly in Article III Section 2 of the Constitution, and requires no N&P supplement.
But the Supreme Court has no power to "say what the law is" in the absence of a case or controversy. That's why cases sometimes get dismissed as "moot."

Now the powers of inferior courts do indeed derive from laws passed by Congress, but in this case the power to pass such laws derives from the same Article 1 Section 8, but a few lines up from the N&P clause where Congress is granted the power to "To constitute tribunals inferior to the Supreme Court"

[Lee Moore]

I suppose I should admit - though it has the square root of zip to do with the N&P clause - that I'm not quite sure whether Congress's power to create inferior courts derives from :

(a) Article I Section 8 a bit further up than the N&P power - “To constitute tribunals inferior to the Supreme Court” or

(b) Article III Section 1 "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. "

To me as a mere amateur, (b) looks less like a power conferred upon Congress than a statement that if Congress establishes inferior courts (using powers conferred elsewhere) then the judicial power is vested in such inferior courts. But since I hear mention of Article I judges and Article III judges, I expect that someone more learned that me (not hard) decided a long time ago that Article III does itself confer power on Congress to establish inferor courts, rather than merely endowing courts established by Congress under the Article I power with the constitutional fairy dust of "the judicial power."

[TheAmazingEmu]

So the Rules Enabling Act, best I can tell, clearly does not apply to Congress. 28 U.S.C. § 2072 specifically says:

"(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals."

It doesn't apply to rules or powers of Congress. I would hesitate to refer to Congress's subpoena power as a "substantive right" but, if it is, subsection (b) would clearly prohibit the rules from governing the actions of Congress.

[Stephen Lathrop]

Bored, I suggest the point you may have missed is that Congress and SCOTUS can pass laws, and promulgate regulations to their hearts' content, but a Constitutionally vested power residing solely in the House of Representatives remains beyond the reach of those laws. Ordinary laws and regulations can't alter or constrain the Constitution.

Or perhaps you do understand that, but think it requires some formal indication that the House intends its subpoenas to be honored pursuant to the impeachment power, and not just on the basis of legislative intent, or some other lesser standard.

[JesseAz]

On this argument Stephen believes the house is supreme over every other coequal branch and even its coequal Congress.

[Stephen Lathrop]

And so it is Jesse. Because in this instance, and in other instances, the Constitution has explicitly made it so. Just as it has made the executive supreme with regard to command of the armed forces, and just as it has made the two houses of congress jointly supreme in the declaration of war. Coequal branches does not mean every enumerated power is shared equally among all the branches.

[Brett Bellmore]

The constitutionally vested power is the power to impeach, NOT the power to do anything they please in the course of deciding whether to impeach.

So, yes, they don't need to demonstrate that impeachment is necessary or proper in order to impeach. That doesn't mean that when engaged in impeaching somebody they can trample all the laws they've previously enacted, and all the constitutional protections that would otherwise constrain them.

It's not a license to do anything they want. It's a license to impeach.

[Stephen Lathrop]

That doesn’t mean that when engaged in impeaching somebody they can trample all the laws they’ve previously enacted, and all the constitutional protections that would otherwise constrain them.

Brett, I think you are probably right when it comes to competing constitutional claims. Those probably require balancing tests which only the courts can provide. But on the bit about "all the laws they've previously enacted"? You are just wrong about that. Laws made by Congress—whether previously or after the fact—do not trump specific constitutional empowerments.

[Allutz]

But Stephen, its pretty clear no investigation is needed to impeach. No evidence is. They can impeach for any reason.

You are implying that they have an implied power to a justified and politically popular impeachment. I do not see such an implied power.

Instead, they can set up systems with legislation (such as appropriating money for investigative teams, which I don't think anyone would consider an implied power unchecked by the Senate and the veto, subpoenas, etc) that give them the ability to investigate so as to have a justification for impeachment.

[Stephen Lathrop]

Allutz, because the House enjoys the power to impeach, it enjoys also the power to decide how to impeach, with or without evidence, at their pleasure. If they decide they need evidence, maybe for purely political reasons, they have the power to get evidence, and to show evidence to the public. Which is exactly what the Constitution intends. The founders vested the power to impeach in the House, a political branch, because the founders wanted a political process.

Modern commenters diverge from the founders when the former denigrate politics. The founders—even though they understood political abuses as well or better than we do today—still insisted on politics as a necessary tool to achieve legitimacy in government.

More recently, politics has come to be denigrated, as if the practice of politics undermines legitimacy instead of conferring it. A notion like that was no part of the founders' intent. Particularly in cases where legitimacy is most important—such as declarations of war, or impeachment, or taxation—the constitution goes every time for the legitimacy which only politics can provide. Indeed, those commenting here who strive to deprive any impeachment attempt of every ability to gather evidence, just as plainly want to do that because they aim to deprive the impeachment process (or outcome) of political legitimacy.

[JesseAz]

It was limited by the congressional regulations passed regarding grand jury materials... Congress can always go back and add more exceptions. But you would k kw this if you argued from a place of honesty Simon.

[TheAmazingEmu]

Are there Congressional regulations regarding Grand Jury materials aside from the Federal Rules of Criminal Procedure?

[bernard11]

What does executive privilege have to do with grand jury materials?

[Bored Lawyer]

Yes, McConnell screwed that up. Barr did not resist production based on executive privilege, he resisted based on the fact that there is grand jury material which is legally precluded from producing by Rule 6, Fed.R.Cr.P.

[bernard11]

But someone, Barr or Trump, is asserting executive privilege, in this and other situations.

Also, grand jury material is not the only stuff redacted. I understand that there is a proposal to let a few individuals see, under highly limited conditions, all except the grand jury material, but why that should be restricted is not clear to me.

[Lee Moore]

As I understand it, Trump either may or has, claimed executive privilege to prevent McGahn appearing before Nadler's Committee.

As to the Mueller Report, Barr has four categories of redaction :

1. grand jury
2. intelligence, sources and methods, cloak and dagger "surveillance" stuff
3. matters prejudicial to ongoing investigations
4. matters prejudicial to unindicted folk

I assume that matters relating to foreign relations fall within 2.

No idea how much of 2 is subject to legal blocks on disclosure, but it seems it can be disclosed in private to the Gang of 8. Presumably Barr could disclose 3 if he felt like it, but if he did he might prejudice ongoing investigations. I believe that 2 and 3 constitute the claimed reasons for redacting all the stuff that the GOP and friends have been trying to get their hands on for the past couple of years.

4. I believe is just DoJ policy, and it figured in Rosie's letter arguing for Comey to be fired.

[bernard11]

Still, 2, 3, and 4 are not grand jury material, and given that Trump, to great praise from certain quarters, waived executive privilege wrt the investigation, how does it come into play now?

And why is McConnell conflating the issues? (Given my low opinion of him, I have my suspicions, but I'd like to hear other ideas.)

[Lee Moore]

The bulk of McConnell's article was coherent - ie Holder was relyng on executive privilege, Barr was not. I think McConnell just got himself confused as he was winding up for his peroration, and referred to Barr having just as good an argument, or better, for claiming executive privilege as Holder. But in fact Barr didn't claim it in re the publication of the Mueller report, and Trump didn't claim it in re Mueller's investigations.

As for 2,3 and 4, I don't believe they have anything to do with ep.
2 I suspect does have a statutory basis in classification laws. 3 and 4 are just DoJ policy, not ep.

But I understand that now the Mueller report is done, and the House wants to carry on with its investigation, Trump is nowclaiming executive privilege in re any further House investigatons. So there's no ep involved (ie it was waived) in either administration officials giving evidence to Mueller, or executive branch documents being made available to Mueller; and no ep involved in Barr's redactions.

But there is ep being claimed for any further testimony to the House, or the House wanting to rootle around in Mueller's files, as opposed to his actual report. Whether and to what extent Trump can sustain such ep claims in court, we will have to see.

[Voize of Reazon]

When the committee demanded the unredacted report plus underlying documents, Barr wrote a letter to Trump asking him to assert executive privilege. In Barr's words,

In cases like this where a committee has declined to grant sufficient time to conduct a full review, the President may make a protective assertion of privilege to protect the interests of the Executive Branch pending a final determination about whether to assert privilege.

It seems reasonable that the executive should be given time to perform a full review, but that time should be granted by a court and not by assertion of a privilege that will not apply to most of the material. If you followed the Holder litigation the DC court found that the deliberative process privilege could apply but would have to be individually justified for each article and so [t]he Department was ordered to review the responsive records to identify those records that were both pre-decisional and deliberative and to produce any that were not.It is difficult to understand how any documents in this case could be pre-decisional and deliberative.

[Voize of Reazon]

There was supposed to be a quote in there, from HOR Cmte. on Oversight v. Sessions. I would have linked to this above but this poor commenting software seems to allow only one link per comment. Anyway, the news from a month ago was that the parties have agreed in a settlement to throw away 8 years of litigation by agreeing to "waive any right to argue that the judgment of the District Court or any of the District Court's orders or opinions in this case have any preclusive effect in any other litigation." That was after Judge Amy Jackson refused (in the linked opinion) to vacate those orders as part of the settlement, on the grounds that judicial opinions are not the property of the litigants and not theirs to bargain away.

[Lee Moore]

bernard : What does executive privilege have to do with grand jury materials?

This article was an easy and coherent read :

https://www.bloomberg.com/opinion/articles/2019-05-09/executive-privilege-the-real-fight-is-yet-to-come

The answer appears to be that executive privilege has got pretty much nothing to do with the redactions in the Mueller report, grand jury related or the other kinds.

What seems to have happened is that post Mueller report, Nadler's committee issued a subpoena for all the underlying investigative materials assembled by Mueller, and that Barr has claimed "protective" - ie temporary - executive privilege over all that; pending an investigation of what material within that vast pile of stuff demanded is, or is not, within executive privilege. So ultimately Barr will claim ep on a subset of all that, and then we will decamp to the courts for an argument.

[Naaman Brown]

"If President Obama was justified in invoking executive privilege to protect the confidentiality of documents and conversations that are unprotected by any law, how can Obama’s admirers be so insistent that Barr is wrong to invoke executive privilege to protect grand-jury materials, which are among the most highly protected and confidential of all categories of information in our system?
"One final difference. Instead of making overheated claims of constitutional crisis, threatening the attorney general with impeachment, and even suggesting sending the congressional marshals to arrest Barr and lock him up in the Capitol basement (was Pelosi just joking about that?), the Republicans in 2012 calmly went to court to seek a peaceful resolution of the dispute. ..."

The Democrats seem to believe they are dealing with Literally Hitler and Putin's Puppet, the evil Orange Man, so different rules apply to Barr than applied to Holder. Or they are posturing for their voter base and secretly hope rules don't change.

[SimonP]

Conservatives' fondness for the Holder episode is so strange, because it both supports what Democrats are now attempting to do, vis-a-vis Barr, and provides an instructive lesson for why Democrats are doing things a bit differently than the Republicans did, way back when.

McConnell's argument about the administration's own regulations on how the special prosecutor's report should be handled is a shameful red herring. The bottom line is that Congress subpoenaed the report, and Barr not only did not provide it but asked the President to make a spurious claim of executive privilege over the report in order to provide cover for Barr's non-compliance. It's appropriate to hold him in contempt of Congress for that, to say nothing of Barr's lies to Congress under oath and refusal to appear for questioning. Just like Holder.

And the search for extraordinary means of enforcing a contempt finding - instead of leaving it to the AG to determine whether to do anything about it - plainly shows what Congress has learned since Fast and Furious, where the court challenges dragged on for years.

[DjDiverDan]

SimonP, are you just so deluded with TDS that logic and reason completely escapes you on this issue? Or are you just that stupid all the time?

[SimonP]

DJDiver deals himself out of the conversation, once again.

[DjDiverDan]

If it’s a conversation with you, I bow out willingly, even gladly. Conversations with morons are always a waste of time.

[SimonP]

Strangely, you find the time at least to track the conversation and leave insulting responses.

[Bored Lawyer]

Simon:
It really is simple. It is illegal for Barr to disclose the grand jury material. That is the unavoidable result of Fed.R.Cr.P. 6 and the ruling of the DC Circuit just a month ago. Holding someone in contempt for refusing to violate the law is simply absurd.

If the Committee feels so strongly, why don't they sue Barr and seek an order compelling him to turn over the materials? (I'll give you a hint to the answer; they would certainly lose, and then would have to go up to the SCOTUS to get it to reverse the DC Circuit's ruling.)

[SimonP]

It is illegal for Barr to disclose the grand jury material.

As I understand it, it would violate the AG's own regulations pertaining to the handling of the Mueller Report.

That is the unavoidable result of Fed.R.Cr.P. 6 and the ruling of the DC Circuit just a month ago.

Does either the rule or the case directly pertain to Barr's authority?

Holding someone in contempt for refusing to violate the law is simply absurd.

And repeating an assertion that implicitly relies on a bit of hand-waving past case law describing how the congressional power of the subpoena works vis-a-vis the executive branch is intellectually dishonest.

If the Committee feels so strongly, why don’t they sue Barr and seek an order compelling him to turn over the materials?

Here, you slyly equivocate on the underlying legal rationale. Because yes, I can see how no court would have the authority, under the existing rules, to direct Barr to disclose grand jury materials. It seems clear that no court subject to the federal rules of criminal procedure may do so, and that is the realm in which the D.C. Circuit case sounds.

But the fact that Congress may not be able to get a court to direct the release of that information does not mean that it may not subpoena that information or hold Barr in contempt for failing to comply with the subpoena.

[Armchair Lawyer]

1. The AG's regulations are following the law.
2. In so much as it's illegal for Barr to release Grand Jury testimony, yes.
3. a. Rule 6e is quite literally the law.
b. Demanding the AG break the law, or else be held in contempt is absurd. What other laws can Congress demand the AG break, or else be held in contempt? Robbery perhaps? Maybe Nadler can demand Barr give him a million dollars from the US Treasury or else be held in contempt. Is that right?
4. There's a process for things. If you want something, and the item in question may be illegal, you don't demand (on threat of imprisonment or fines) the person give it to you. You sue them, and let the courts figure it out. If Nadler things Barr owes him a million dollars, he sues Barr in court. Nadler doesn't use his Congressional powers to threaten him with fines and imprisonment. It's an abuse of power.

[Stephen Lathrop]

Armchair, I don't think you are following Simon's argument. If I haven't misunderstood him, he is making a separation of powers argument. Meaning that the House of Representatives has a Constitutionally vested power of investigation which laws and regulations can't constrain. So all this talk about Barr following the laws about grand jury testimony is beside the point. No mere law can deprive the House of a power which the Constitution says belongs "solely" to the House.

[SimonP]

Armchair's response was so thoroughly amateurish I had difficulty deciding where to start. But you are basically correct about what I'm trying to say here. Bored and Armchair's argument seems to be, in essence, that the weakness in the contempt case against Barr is simply that Barr hasn't deemed fit to devise for himself a regulation that requires him to cooperate with Congress.

[Armchair Lawyer]

"Meaning the House of Representantives has a Constitutionally vested power of investigation which laws and regulations can't restrain". "No mere law can deprive the House of a power which the Constitution says belongs 'soley' to the House"

Wow, that's a broad statement.

Start with this.
1. There's no way "just" the House and not the Senate have that power.
2. That investigative power is not explicitly written into the Constitution, but rather implicitly granted.
3. The investigative power does have restraints, as according to Wilkinson v. United States.
4. A very real question is, can an investigative power by the House compel someone to break the law? If the House was to Subpoena something absurd...say the Nuclear Launch Codes...from the President, would that be OK?

[Stephen Lathrop]

1. There is a way. Read the Constitution. Article 1, Section 2 says, "The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment." See, the House, nothing about the Senate.

2. Sure, if you think the Necessary and Proper clause is not written into the Constitution. But even if you think that makes investigation of impeachable conduct an "implicit" power, that doesn't mean it is a lesser power, or no power. In fact, Justice Marshall wrote, "1st. The clause is placed among the powers of congress, not among the limitations on those powers. 2d. Its terms purport to enlarge, not to diminish the powers vested in the government."

3. ?

4. Maybe not the launch codes. The Constitution gives the President sole power to command the armed forces.

[Lee Moore]

But as explained above, while the Necessary and Proper clause is indeed in the Constitution, it grants power to Congress to make laws, not powers to the House to compel witnesses etc to help it decide on whether to impeach someone.

So the only argument - and it's not a good one - that the House has a Constitutional power to do things necessary and proper to carry into effect its (undoubted Constitutional) impeachment power,
is that these incidental things are implicit in the grant of the impeachment power. They are certainly not explicit.

And one reason why it is a poor argument that such powers exist implicitly, is because the Constitution has laid out an explicit mechanism for creating and defining powers that are necessary and proper for carrying into effect Constitutional powers. The Necessary and Proper Clause.

[Stephen Lathrop]

Lee, so no necessary and proper powers (let alone privileges) for the executive branch? No executive privilege, because the N&P applies only to the power of Congress to make laws? No power for SCOTUS to say what the law is, because no law of Congress confers that power?

I'm sure if you keep trying, you will end up with the exactly tailored suit of assertions you need to take compulsion out of the hands of the House during its impeachment investigations. But that suit won't fit. It would make a nullity of the impeachment power.

[Lee Moore]

so no necessary and proper powers (let alone privileges) for the executive branch?

The executive branch gets N&P powers if and to the extent that Congress passes laws to grant them :

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The Executive can't conjure up its own N&P powers. That's an Article 1 lawmaking power belonging to Congress.

No executive privilege, because the N&P applies only to the power of Congress to make laws?

Executive privilege has got literally nothing to do wth the N&P clause.

No power for SCOTUS to say what the law is, because no law of Congress confers that power?

Article III grants SCOTUS to power to decide cases and controversies. It certainly has no power to say what the law is in the absence of a case or controversy. See "moot."

You are hopelessly confused on this issue, I'm afraid.

[JesseAz]

Stephens this may shock you and simon... but the investigation powers of the house are not limitless. For example they could not violate 4th amendment restrictions. They also cant blatantly violate regulations they passed via their rules and procedures and had the executive sign off on.

To.think differently is pure idiocy.

[Bored Lawyer]

I was thinking about those things too. But to be fair, you have to differentiate between Constitutional limitations and statutory ones. The 4th and 5th Amendments are Constitutional limitations on Congressional power as much as anything else. Congress could not override, say, the 5th Amendment privilege against self-incrimination. Whether that is through a subpoena or legislation.

Question is, whether statutory restrictions on disclosure trump a House committee subpoena. Rule 6 is the equivalent of a statute (it gets its authority from the Rules Enabling Act). There are other statutory restrictions -- HIPAA comes to mind.

But I don't buy SL's arguments. Congressional enactments have the force of law, and I don't see how a subpoena, even if a valid exercise of Constitutional authority, overrides a legal command (also passed by Congress) not to disclose something. The fact that the authority to subpoena is grounded in the Constitution is neither here nor there. The Constitution also grants Congress authority to make Regulations for Article III courts, which is what the procedural rules (civil, criminal and evidence) are.

[Allutz]

Laws are greater in power than subpoenas because they pass both houses and presentment to the President.

Sometimes laws are unconstitutional, the government cannot pass a law taking away the House's power to impeach or the Senate's power to ratify treaties. However, if the House thinks that this law is unconstitutional as applied in this situation they have to litigate that, or get the executive branch to agree with them.

[Stephen Lathrop]

Allutz, the sole power to impeach means nobody else participates. The constitution is telling us that the House can investigate on its own authority, it can subpoena on its own authority, it can find contempt on its own authority, and on its own authority it can punish contempt when it finds it—and no other party in government is authorized to say otherwise. That is what sole power means.

How can that be? Don't we have limited government, and aren't there checks and balances? Mostly, yes, but not always.

The key to understanding is to go back a bit, to consider again a subject always much in mind among the founders, but barely thought of today—the subject of sovereignty. A sovereign's power is never subject to checks and balances, nor to any limitations at all, except for the geographic scope over which the sovereign enjoys power to rule at pleasure.

Although today's school children have been taught to react with shock and dismay at any such notion, the founders saw it otherwise. Their understanding was that uncontrolled sovereign power was indispensable to every government. Indeed, for them, the notion of limited government was nonsense, unless there was some greater, unrestricted power to do the limiting. Hence, the United States is ultimately ruled not by its government, but by an all-powerful collective sovereign—designated by them in their founding decree as, "We the People."

That has implications. One of the most important implications is that not everything government does is done alike, nor is everything done by government empowered alike. Most of the process of government, the part subject to checks and balances, is straightforward constitutional compliance, where the government acts in subordination to the sovereign, using the general systems the sovereign decreed for general business.

A few things the government does are exceptions, exceptions in which the sovereign has empowered government to act under lesser subordination, and exercise sovereign power more directly—the President's command of the armed forces, treaties, constitutional amendments, declarations of war, impeachments, and trials of impeachments, are among those exceptions.

Those are readily recognized, because each is marked out by special, purposefully designed constitutional provisions, which set it aside with uniquely prescribed procedures from the normal run-of-government business. Thus, a normal law passing both houses, and being signed by the president, can not amend the Constitution. Instead, there is a special procedure for that, decreed specifically to conform that exercise of sovereign power to the pleasure of the sovereign as applied to that designated end. While amending the constitution, the government is not acting in subordination to the sovereign, so much as it is exercising the sovereign constitutive power directly, albeit according to a form the sovereign has specified.

An important point to notice is that in each of these instances above, while the sovereign's special procedures are followed, the power exercised is otherwise without limit. Sovereign power is always unlimited.

And so it is with impeachments, and with trials of impeachments. Those too are sovereign constitutive powers, practiced with full sovereign authority, and not subject to any limitations the sovereign did not explicitly impose. That is what it means for the sovereign to decree the sole power of impeachment to the House, and the sole power to try impeachments to the Senate.

In that way the sovereign empowers its nominal servant, the government, to apply directly full sovereign power, but only in a few prescribed instances. Note also, that each such instance is assigned to a political branch, so that if any corrective from the sovereign is required, the political process can engage the sovereign People to deliver it. Delegation of sovereign power to the government goes only so far, and is always backstopped by the full power of the actual sovereign People, through the political process.

[NashTiger]

They have no power of Investigation

[TheAmazingEmu]

I posted this elsewhere, but the Federal Rules of Criminal Procedure clearly do not apply to Congress and, if they did, it's exceeds their delegated powers.

They probably won't sue because they don't have to. They'll hold him in contempt and he will challenge it in the courts. Either way, it'll go to the courts.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Did you even RTFA? It specifically says that current court rulings require Barr to redact the grand jury material. How about addressing that?

Nothing you say addresses TFA.

[SimonP]

Court rulings do not require this.

Next.

[Lee Moore]

So, favor us with your own analysis of McKeever v. Barr.

[SimonP]

I don't need to analyze McKeever. That case related specifically to the court's authority to direct the disclosure of grand jury materials under the FRCP. It does not pertain to Barr's authority or obligations to disclose grand jury materials cited as evidence in Mueller's report, and the FRCP are not relevant to that question, either.

The only reason the FRCP come into play is because DOJ policy relating to the special counsel regulations is not to disclose grand jury-related materials described in mandated reports. That's a separate regulatory framework, not addressed by McKeever.

[JesseAz]

Simon's path of argument... dismiss all evidence that is related and controlling and make up constitutional assertions no court, such as the USC, has granted bit assert the interpretation as fact. Simple Simon.

[JesseAz]

Congress has actual oversight of FBI and DEA regulations. They do not have oversight of grand jury materials. Simplistic thinking props up your simplistic arguments simple Simon.

Likewise Congress waited for over 200 days before even a threat of contempt. And guess what? Congress still doesnt have the fast and furious documents.

[Lee Moore]

As this is an EV post, I wish to be reminded of the rule that tells us to say Attorneys General rather than Attorney Generals. I suspect it's something to do with General clinging by its fingernails to adjectival status.

[Bored Lawyer]

That kind of comment is something up with which I shall not put. (To paraphrase Winston Churchill).

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

General is an adjective. That it follows the noun is immaterial. There are other such noun-adjective plurals. Court martial is a common one.

You wouldn't say "generals attorney" or "martials court", would you?

[bernard11]

Similarly, "brothers-in-law."

Also, in titles like "Lieutenant General" the word "general" is an adjective.

The adjectives following the noun is common in Romance languages. I suspect, without knowing, that the usage in military ranks derives from French.

[Lee Moore]

Also, in titles like “Lieutenant General” the word “general” is an adjective.

Are you sure ? I'm quietly confident that Lieutenant is the adjective here, ie Lieutenant General is a type of General, not a type of Lieutenant; and so the plural would be Lieutenant Generals.

[bernard11]

Having googled, your usage seems more common, but "Lieutenants General" is also used.

French was no help since both words are pluralized.

My notion stems from the idea (which I picked up somewhere) that there are several types of lieutenant - lieutenant, lieutenant colonel, lieutenant general, and that the second word defines the type of lieutenant. Of course we don't have "lieutenant plain", but the Navy does have Lieutenant Junior Grade.

Possibly the "Lieutenants General" plural is an old-fashioned, not-quite obsolete, formation.

[Lee Moore]

My firm belief, confirmed by this :

https://www.army.mil/ranks/

is that Brigadier-G, Major-G, Lieut-G, and plain G are all types of General. And a Lieutenant Colonel is a type of Colonel.

And a Rear Admiral is a type of Admiral 🙂

And the Navy does have plain old Lieutenants. But they are relatively junior, equivalent to an Army Captain. Far below even a Lieutenant Colonel. Unless you come from a naval family, in which case a Chief Petty Officer outranks anything in the Army, from Full General downwards.

[Robert Beckman]

As a sailor, Rear Admirals are in fact rears, as are almost all other Admirals....

All of this comes directly from French, and in particular their support during our wars for independence (both 1776 and 1812), but the catch is that not all ranks derived from the same source.

So: Lieutenants Junior Grade, Attorneys General, but see both Lieutenants General (multiple lieutenants who are not specialized, with this rank no longer present in our current hierarchy, but does exist in some others) and Lieutenant Generals (multiple medium-high-ranking Generals). And just to make the Generals fun, a Major outranks a Lieutenant, but a Lieutenant General outranks a Major General.

[Lee Moore]

All of this comes directly from French

Nonsense. It comes from the English, who got it from the French.

[Roman Moroni]

Even a MODERN major general?

[Voize of Reazon]

Lieutenant General is a type of General

Correct. Related to this is the fact that a Lieutenant General outranks a Major General, but a Major outranks a Lieutenant.

[bernard11]

a Lieutenant General outranks a Major General, but a Major outranks a Lieutenant.

But a Lieutenant outranks a Sergeant Major, and "Major General" is an abbreviated form of "Sergeant Major General."

Lieutenant General is a type of General

That's the question, isn't it? Is a Lieutenant General a type of General, or a type of Lieutenant.

Is a Sergeant Major a type of Major, or a type of Sergeant?

[Maximus Cunctator]

When addressing a general, whether brigadier, major, lieutenant, or full, the proper form is "general" -- that's the title, the other is a qualifier. A rear admiral, whether lower or upper half, is an admiral, as is a vice admiral. The correct way to address a Sgt Major is "sergeant", or, if (s)he is a Chief Sgt Major, "chief". And if (s)he is a gunnery sergeant, you may say "gunny" -- so both "chief" and "gunny" are interesting usages where the qualifier is turned into a title. The proper way to address Nadler is, I think, "*sshole general".

[Lee Moore]

A Sergeant Major is a type of Sergeant.

Not being a military man myself, I have to rely on my Dad's corny old jokes about the Army, of which my favorite is probably the basic instruction given to all new recruits.

"If it moves, salute it. If it doesn't, paint it."

[Lee Moore]

Also....

....I may be imagining it, but it seems to me that some folk, Senators, maybe press reptiles, sometimes address the Attorney General, or refer to him, using the abbreviated form "General."

Perhaps by incorrect analogy with military Generals, who really are Generals.

[bernard11]

Actually, I've even heard lawyers refer to an Attorney General as "General so-and-so."

[Ridgeway]

They should be flogged. As should anyone who refers to the Surgeon General as "General".

Moreover, any such government officer that either demands such form of address, or that dresses up in military-style regalia (I am talking to you, Joycelyn Elders) should be hanged, drawn and quartered.

P.S. Regarding Lieutenants -- in the Navy, as mentioned, they have Lieutenants, JG and regular Lieutenants. In the Army, they have Second Lieutenants, who rank below First Lieutenants.

[Voize of Reazon]

Sure, and General was originally an abbreviation of Captain General, in which "general" was the adjective, referring to a military commander (captain) of an army (general) rather than a single brigade. But that was centuries ago and modern usage doesn't reflect it any longer except in specific usages (e.g. speaking of "general officers" rather than "General officers").

[Naaman Brown]

Basic Training Mnemonic for General Ranks
Be My Little General
* Brigadier General
** Major General
*** Lieutenant General
**** General

Usually the plural form is Generals in all four ranks.

However, the title Lieutenant was used for the immediate subordinate officer to either a Captain, a Colonel, or a General. So you will see the plural Lieutenants General used sometimes, but not used as a general rule.

[Bob from Ohio]

The King's representative in a district or province was a "lieutenant" who was vested with broad or in other words "general" authority to act in the King's name. So "general" in that title as with attorney general is a measure of the authority, not a rank.

The noun is "lieutenant" and the adjective is "general". So the plural is "lieutenants general" like attorneys general.

An Army "lieutenant general" is a rank. The noun is "general" and the adjective is "lieutenant". So the plural is "lieutenant generals".

[SimonP]

I would suggest adding a proviso to the so-called "Mr. Ed Principle," to the effect of: "... that having been said, I will pass along, uncritically and with my endorsement, op-eds by notoriously reliable conservative commentators on right-wing websites."

Eugene, I think you should be honest about this. You don't avoid saying anything about Barr/Mueller because you don't feel like you have the intellectual footing to do so. I think it's apparent that you have views on the issue that you feel are well-founded. I think, instead, that you are avoiding the issue because you work at a left-leaning institution and want to avoid alienating your colleagues and students.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

What does any of your surmising have to do with the article or its conclusions?

[SimonP]

Is there some reason I should waste my time on McConnell's "article," given that even the excerpt that Eugene chose to cite, when recommending that we "read the whole thing," contains a logical fallacy that anyone who's cracked open an LSAT study guide should be able to spot?

Anyway, if it's any sin to comment on Eugene's decision to link to McConnell's piece, rather than the substance of McConnell's piece itself, in your view, then I don't see how you can justify your own comment. You've neither defended McConnell nor Eugene's decision to link his piece here. Instead, you've attacked my own decision to comment on Eugene's decision to link McConnell's piece. Two wrongs make a right?

[JesseAz]

To be fair, it's a waste of time for you to comment anywhere.

[SimonP]

Jesse, your comments are so incoherent and juvenile that I can't say they even bother me. It's really saying something when my own obsessive need to respond to trolls fails to engage with you.

[Perseus`]

EV has written all sorts of things even closer to home that alienate colleagues, students, and administrators. So spare us your speculative drivel about his motives.

[SimonP]

Agreed. But most of the time, when he has done so, he's spoken at least within the bounds of his putative expertise.

[LiborCon]

"Trump’s lawyers waived privileges precisely to get the Mueller investigation over more quickly, so that the American public would know that there was no collusion between his campaign and the Russians."

Oh Snap!

"If President Obama was justified in invoking executive privilege to protect the confidentiality of documents and conversations that are unprotected by any law, how can Obama’s admirers be so insistent that Barr is wrong to invoke executive privilege to protect grand-jury materials, which are among the most highly protected and confidential of all categories of information in our system?"

Because they're ideologues, liars and hypocrites. And they hate Trump so much that they've lost their minds and their principles.

[Jimmy the Dane]

I remember the media response when Holder was held in criminal contempt of Congress and the next day the Asst. AG for DC stood up in a press conference saying it would be insane to prosecute Holder. The Left cheered and called it "grandstanding" by Republicans in Congress. Now, with the tables turned, it is apparently a "constitutional crisis".

[Michael Ejercito]

Democrats seem to be good at setting precedents.

In fact, "it's just sex", "everyone does it", "gentlemen are supposed to lie about sex", "it's just a private matter", "drag a hundred dollar bill through a trailer park and you'll never know what you'll find" are the reasons not enough people cared about "grab 'em by the pussy".

[santamonica811]

Gosh, your explanation for why folks like you were not bothered by a candidate (truthfully or falsely) bragging about multiple sexual assaults all comes back to it being the Dems' fault.

Color me surprised.

[Michael Ejercito]

I did not want this to be the rule.

I wanted character to matter. "Grab 'em by the pussy" should have been a campaign-ending scandal.

But it was not.

Because the electorate agreed with the arguments made by Bill Clinton and his surrogates twenty-one years ago.

They abolished the standard, and I have to live with it.

[Stephen Lathrop]

Whatabouttery. It ought to go over well with the Trump crowd.

But as an argument for serious consideration, not so much. Yes, Holder was in contempt. And yes that was bad. And yes, it didn't get the response it should have. And yes, the Rs made as much partisan hay about it as they apparently thought they were politically able to do.

I would have been fine with inherent contempt against Holder. I would have been fine with impeachment for Holder. Apparently Republicans just wanted the political issue—and to keep it going as long as it was useful to lather up the base. I thought at the the time that Republicans didn't seem to sincerely want to investigate much, because doing that might deliver a conclusion, and put an end to the endless bellowing which seems to have been their real object.

Still, so-what? Is there any sane person who really believes that Holder's dust-up over a single policy (and his deplorable response) had the scope to be a constitutional crisis? Is there any sane person who can read the Mueller Report without realizing the potential scope of wrongdoing being stonewalled and covered up there is incomparably greater and more threatening than Fast and Furious?

Compare the content and extent of the two cover-ups themselves. Obama never had to preemptively refuse "all the subpoenas" because there weren't dozens of investigations involving dozens of defendants, all generating subpoenas to refuse. There wasn't an election being corrupted. Nothing in the Fast and Furious episode smacked of anything but a smarmy attempt to avoid political embarrassment. Constitutional crises are not made of such flimsy stuff.

The only way to posit equivalence between these two examples is to focus only on partisanship—but not on content, nor on extent, nor on implications. Partisanship works alike in both of them. Which makes the partisan comparison a convenient basis for whatabouttery. But the partisan comparison tells us nothing at all about whether Trump's conduct has approached constitutional crisis, or already crossed the line.

[Bored Lawyer]

SL -- Barr was just voted to be held in contempt for refusing to violate grand jury secrecy. The law as is currently construed is plainly on his side. The notion that his refusal is a Constitutional crisis is absurd.

[Stephen Lathrop]

Bored, in cases implicating impeachment, the investigatory power has been "solely" vested by the Constitution in the House of Representatives. Is it your suggestion that either a law made by the House, or something done by the courts, has ability to burden or constrain that Constitutionally vested power?

[iowantwo]

There are no articles of impeachment.

[Stephen Lathrop]

So what? If there were articles of impeachment, you would have an instance of charge first, investigate afterward. But the power to investigate is undoubtedly a necessary and proper part of the impeachment power.

I do agree that the sole power of the House to investigate impeachable offenses would be more plainly evident to bystanders if the House had already appointed a select committee on impeachment. I have already suggested in another comment that they should do that.

[drilldrive]

To bring up the surrounding context shouldn't dull or sharpen whether the situation at hand is a constitutional crisis, or by the least whether it is at odds with the constitution. Thus this is a viewing of precedent to contrast the primary case at hand, not altogether whataboutism which boils down to "I did something bad, but so did you!". Not to say that whataboutism isn't being had here, which is just a guaranteed aspect of political theater.

[Armchair Lawyer]

Fast and the Furious. Benghazi. Solyndra. IRS targeting. Botched healthcare.gov. Those were just the official investigations.

That doesn't even count the Palestinians funding Obama's election. Obama's "Forgetting" to check foreign donations. Obama's massive FEC fines.

Then there's Obama's violations of the war powers act with Libya. His assassinations of US citizens. His unilateral "rewriting" of the US Senate's rules on when the Senate is in session. His "If Congress won't act, I will" declarations on Immigration policy.

And who can forget Obama having "Russia give him space"... Looks like Russia got Crimea in exchange...

[Jimmy the Dane]

"Whataboutism"...what a joke of an excuse to try to explain away blatant double standards.

Why not just plainly state that liberals are held to different behavioral standards then conservatives are and be done with it?

[Armchair Lawyer]

Because....

Look over there, Trump said something bad on Twitter!

[Wise Old Fool]

It's pretty obvious they're both in contempt. I can understand not releasing to the general public on reports that might endanger witnesses or yet to be charged people BUT it makes no sense to hide it from a committee. That is the very definition of not being transparent. I also think it should flow all three ways congressexecutivescotus. This is to keep them all in check. Barr is in contempt and should be thrown in jail until he complies or resigns.

[Allutz]

Hiding from the committees is essential (outside of SCIFS) because they are known leakers.

[BestUsedCarSales]

I like that Constitutional Crisis is a buzz word now. It has a good ring to it.

[jst1]

Who will arrest him?
What jail will he sit in?

[Bob from Ohio]

The House Sergant at Arms and they have a long unused cell in the basement.

My question is what agency provides AG' security and will these agents let a House official arrest the person they are assigned to protect..

A firefight between the Sergant at Arms and US Marshals will do wonders for our system.

[drilldrive]

My two points of contention for this situation where I could have seen the Democrats have more ground to stand on is that (i) why did Barr only give the lesser redacted report to 12 members of Congress and to not allow these members to discuss the material together and (ii) for Barr to reject his own volunteering of going to the House Committee. And I understand that the House did not subpoena Barr, but why was the odd request to have outside staff lawyers question Barr quite the breaking point of his attendance?

[Armchair Lawyer]

1. Confidentiality. Much of the information was of confidential nature, often involving current investigations against Russian interference. With such information, you want to limit disclosures, as much as possible, while maintaining oversight. Barr's position here did this. This type of action (allowing limited viewing) was or is fairly common, especially with items related to the FISC applications.
2. Why are the staff attorney's questioning Barr? Are they simply trying to catch him in some leglistic perjury? What are the attorneys getting that the Congressmen and Congresswomen themselves cannot?

These things matter.

[drilldrive]

Thank you for the insight.
Regarding (i), I do understand limiting the exposure, though I do not understand why there could not be an interaction of staff between congressmen. I do see it would further control on the confidential material, and yet I see it as fundamental for interaction between members of Congress. That this is fairly standard protocol gives more ground to Barr though.
And for (ii), I agree that the staff attourney's questioning Barr was in bad faith, and yet why did that result in Barr not showing up to the hearing? I also must say that I have only heard of such an accommodation being made for the Kavanaugh hearings, and certainly does not suit Barr's hearing. But would it be a legitimate risk for Barr to have shown up?

[Armchair Lawyer]

2. The most publicized use for these "staff attorney" questionings are in impeachment proceedings...those of Clinton and Nixon. Staff attorneys have questioned lower ranking officials, but never someone so high up...without an official impeachment. This was meant to look like an impeachment without actually being one.

[iowantwo]

Yes. The House wants to televise an Impeachment like event, to mislead and fool voters into thinking congress has evidence of a high crime or misdemeanor, against President Trump and his administration. All of this is bad theater put on by Democrats. Not a hint of real outrage. Just campaigning for votes.

[bernard11]

Why are the staff attorney’s questioning Barr? Are they simply trying to catch him in some leglistic perjury? What are the attorneys getting that the Congressmen and Congresswomen themselves cannot?

They are trying to follow a consistent and thorough line of questioning, with opportunity for followups and so on, without the severe time constraint questioning by the members imposes.

Your excuse about perjury is utter BS, parroted I suppose from Fox or somewhere.

[Armchair Lawyer]

I think it was Nancy Pelosi uttering something about perjury or lying or crimes or some nonsense, not Fox news.

[iowantwo]

Lawyers are well represented on the committee. The time contraints on questioning are Committee Rules and those can be changed, as they had to be changed for allowing staff lawyers to get 30 minutes.
let's not forget, Republicans have equal time to ask Barr questions. Those questions will center on the Obama administration spying on a rival political campaign. Since we have resident experts have declared that Congress can subpoena, anything they want, there is a piece from the State Dept telling the FBI Steele was a liar, and all of information was fabricated, that Wray just classified, not to be unclassified for 25 years. That should be interesting proof that the FISA warrant for Page was a lie, and Comey and the DoJ where fully warned and aware, with evidence.

[SimonP]

1. Confidentiality.

The problem with this is that people defending Barr here are citing the FRCP, which provides no exception for "limited disclosure of grand jury materials." So, you can't maintain that Barr's blocking fuller disclosure is justified on the basis of rules regarding grand jury materials without acknowledging that Barr himself has already agreed to violate those very same rules.

[Armchair Lawyer]

1. They weren't grand jury materials being disclosed. There were other categories of redactions.

[A nerdy Fred]

> the odd request to have outside staff lawyers question Barr

Was it odd? I have read a claim that it's routine but I don't actually know. Listening with curiosity.

[drilldrive]

Well I have seen my fair share of high-profile hearings, and the only time I have seen staff attorneys ever as questions was during Kavanaugh's hearing. As Armchair Lawyer said they were also used in the Clinton and Nixon impeachment hearings and in lower-profile hearings.

[[Eugene Volokh] “William Barr vs. Eric Holder: A Tale of Two Attorneys General” – Jehtro Lewis – Blog]

[…] from Law https://reason.com/2019/05/12/william-barr-vs-eric-holder-a-tale-of-two-attorneys-general/ […]

[Brett Bellmore]

Technical quibble: Fast and Furious wasn't "intended to track illegal gun sales." We know this because no effort was made to track the guns. They were just sold and then would sometimes show up at crime scenes.

About that time the Obama administration had been making claims that Mexican cartels were arming themselves from border state gun stores, and was proposing to crack down on them. F&F appears to have been an effort to create the illusion these claims were true.

[bernard11]

As always, Brett assumes the worst of people he dislikes, and the best of those he likes.

[RestoreWesternHegemony]

Because liberals are in fact, evil people who seek to destroy Western civilization to satisfy their perverted hatred of traditional European culture.

[Brett Bellmore]

Seriously, Bernard: The Fast and Furious program had no provision for actually following the guns. It was a common complaint by the agents themselves: They just arranged for the illegal sales, then the guns disappeared.

You don't track guns by not tracking them.

[NashTiger]

What part of his recap was incorrect?
In fact, no effort was made to track the guns.

The entire enterprise was a follow up to an earlier operation in the waning days of the Bush Admin that generated a false stat that "90% of Mexican cartel guns come from the US". It was a stat used frequently during the 2008 campaign. In this case, Project Gunrunner, the ATF purposefully allowed gun dealers to sell to straw purchasers, hoping to track the guns to the cartels, and indict and lock up the straw purchasers. The real stat was that 90% of the guns recovered - that they could track - came from the US gun stores, in no small part because they (the ATF) had facilitated the sale.

So the entire idea of Fast and Furious was to give more ammo to the anti-2A crowd by claiming that the cartels relied on US gun store purchases, instead of simply getting them thru their Mexican Police and Army contacts. In this case, there was no effort to sting any straw buyers, and the guns themselves were therefore not tracked to the border.

[Jimmy the Dane]

What I find astonishing here and elsewhere is the extent liberals will bend and break to pretend that there isn't a complete double standard being applied to Trump. I wish they would just come out and say that the rules just don't apply equally to liberals and conservatives. And the truth is they don't.

If the Republican Congress had ginned up so many fake investigations against Obama they would be derided as un-American racists who just couldn't get over the fact that there was a black President. Here though it is completely "acceptable" that the Left try to unseat Trump because he beat Hillary. Whatever it takes they say.

The ultimate problem is that it is going to backfire on them. Even if they succeed in getting Trump by throwing all the rules of politics out the window eventually the tables will turn on them and the right isn't going to play by any rules. And that will just be bad for our society in general.

If Liberals really cared about this country they would just stop and get over the fact that Trump won. But they can't. Sore losers.

[SimonP]

If the Republican Congress had ginned up so many fake investigations against Obama they would be derided as un-American racists who just couldn’t get over the fact that there was a black President.

Well, they did, and they were.

Have you forgotten the Benghazi "investigations?" You know, the ones that were almost explicitly designed to undermine Hillary's campaign, and were apparently successful in that regard? Talk about a roving commission to turn up anything that could be used against a political opponent.

If Liberals really cared about this country they would just stop and get over the fact that Trump won. But they can’t.

Personally, the only thing I can't get over is the idea that Trump cooperated with the Russians to get himself elected. And then he directed Giuliani to do it again with the Ukrainians, once he saw how congressional Republicans were determined to let him off the hook for it. Doesn't that cause you any concern?

[Robert Beckman]

Can you point to some strong evidence that Trump “cooperated with the Russians to get himself elected?”

I don’t want weak evidence like his business dealings, Trump Tower Moscow, or even the Penthouse for Putin claims (I haven’t bothered to see how much truth was in this one, but both his actual history in other totalitarian states and his general business practices make this business-as-usual, so even if true it’s not evidence of cooperation for election purposes). I also don’t want evidence that has direct analogs with the Clinton campaign - after all, if both Trump and Clinton did something similar, and its evidence of Trump cooperating with Russia, then it’s also evidence of Clinton cooperating with Russia, and so doesn’t give us any real insights.

To put it in perspective, if both my brother and I got our mom flowers for today, either either evidence that we both love her, or that we both have an Oedipus complex - it’s irrational to claim it’s proof of my familial love and proof of my brothers nefariousness.

So do you have any strong evidence of Trumps cooperation? That doesn’t have an immediate counter example of actions by either Secretary Clinton or President Obama?

I’d really like to see such, as everything I’ve seen thus far (and I’m NOT hunting for it) falls into either the class of “crass things the Trump Organization has always done (like his claims of buying legislators),” or “things that all politicians do.”

Note that claims of “its not just what he does, but how he does it” fall into the first class, and are extremely weak evidence.

[Stephen Lathrop]

When you enumerate all the evidence you find unacceptable, what you are attempting is to dismantle the giant mountain of circumstantial evidence which now casts its shadow on Trump's presidency. Impossibly long lists of circumstantial coincidences shouldn't be so readily dismissed.

[NashTiger]

What circumstantial coincidences? You haven't listed any.
Trump joked about Russia getting Hillary's (illegal unsecure) emails - more than a year after she had destroyed her server.

Did Trump promise Valdimir that he would have more flexibility after the election? Did he give Kislyiak a mistranslated office supply store prop? Did he ridicule his opponent for wanting to treat Russia sternly as being stuck in the 80s? Did he soft peddle Russias allies and client states Syria, Iran, Venezuela, and Cuba? That is all circumstantial evidence to me.

As is ramping up US energy production (eg: opening ANWR) in spite of Russian anti-fracking propaganda. Or massacring 400 Russian soldiers in Syria. Or backing out of the Iran Deal. And arming the Ukranians (instead of offering blankets). Or supporting regime change in Venezuela and Syria. And trying to kill a pipeline deal in Germany. And making all NATO partners increase their Defense spending.

So who was the Russian puppet?

[iowantwo]

The difference is Bengahzi actually happened. As of the close of Muellers report, no evidence exists that would cause any investigator to suspect conspiracy by the Trump campaign with Russia. Evidence talked about is all contacts that US, and Foreign agents run at Trump campaign people for entrapment purposes.

[Stephen Lathrop]

Those would have to be some remarkably incurious investigators.

[Brett Bellmore]

The evidence is that they were, if anything, very inquisitive, perhaps even ruthless. But that there just wasn't any conspiracy to find. The FBI even made a couple efforts at entrapment, and the Trump campaign didn't bite.

They found one guy, an identity theft criminal, who'd conspired with them not knowing they were Russian, and that was it. There wasn't any conspiracy to find.

Perhaps you're confused by the fact that the Trump campaign, like every serious Presidential campaign, had foreign contacts?

[Lee Moore]

Perhaps you’re confused by the fact that the Trump campaign, like every serious Presidential campaign, had foreign contacts?

I have little doubt that had Mueller been hired to compile a report on Trump campaign contacts with Israel, it would have been a much fatter report.

[Sarcastr0]

Has McConnell's judgement ever come out against one of Trump's actions? Whenever I see him posted here he seems to be more advocate than analyst.

[Robert Beckman]

Might this be because when he disagrees, it’s only mildly (so he doesn’t publish), but when he does agree and sees what he thinks are improper (bad faith, incompetent, etc) condemnations?

Or is it that YOU don’t see it when he disagrees, because your news and opinion sourcing is biased itself. This isn’t to condemn you, I didn’t notice it until you pointed it out, but I know both how and that my news sources are biased (I don’t read National Review, for example) and in my case I haven’t found a competent and regular critic of the current administration other than from the libertarian view, and even previously generally reliable sources (Techdirt, for example) have growing Trump Derangement Syndrome (note: Techdirt’s is growing from very small to still small, but it’s definitely shown up over the last two years, and they’ve been pretty reliable for 15 years now).

[Sarcastr0]

Fair point, but if the issue is that the Conspiracy only shares him when he's defending Trump that is also biased, though not his.

[Millennial Lawyer]

We need a Fairness Doctrine for the VC's sharing of McConnell.

[Rev. Arthur L. Kirkland]

All we need is a marketplace for ideas. In America, that market has worked well throughout my lifetime, largely in line with my preferences and against the wishes and efforts of conservatives.

This half-century of market verdicts and progress has made some people quite cranky.

[Allutz]

Has Trump ever lost at SCOTUS for any of his controversial actions? Muslim ban? DACA? Bueller?

[NashTiger]

There was no Muslim ban, just a ban on 7 countries his predecessor's State Dept had decided were unable or unwilling to properly vet travellers. A power explicitly given to the POTUS under 8 USC 1182

"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. "

9 of the 10 largest Muslim countries in the world were unaffected

[ReaderY]

I think this perspective is helpful. Barr’s claims of privilege includes claims that are least arguable, and at least arguably similar to claims the Obama administration made (and for which Holder was held in contempt).

In other words, what we are seeing more resembles business as usual, albeit with unusually sharp and demonizing rhetoric, than any sort of constitutional crisis.

Given this, the House might be better off proceeding by issuing subpoenas and seeing if the courts will enforce them, than sending out the sergeant-at-arms to seize Barr and other administration officials.

Otherwise, there is danger of a Road Runner/Wile E Coyote type trap. The House, eager to pursue the Trump administration for allegedly unconstitutional activities, may be in some danger of overreaching itself, putting itself in a constitutionally untenable position, and then having the legal scholars and the reasonable minds forced to defend the administration. If the House overreaches, the White House can focus on its misconduct, perhaps getting the public to completely forget the underlying issues. It could significantly backfire.

The firebrands should perhaps be advised to be careful with the torches, not toss them about too much, lest they land on their own roofs.

[Stephen Lathrop]

ReaderY, your counsel of caution makes some sense, given the typical incomprehension the public brings to issues of constitutional structure. For instance, most folks surely believe that the SCOTUS gets the last word on everything, even when it isn't true. And I don't think it is true in this instance. To make it true, there would have to be some explicit constitutional grant to the executive that the impeachment investigation sought to breach. That the Court would have to arbitrate. But nothing of that sort seems evident yet.

Thus, when you write, "Given this, the House might be better off proceeding by issuing subpoenas and seeing if the courts will enforce them, . . ." there is a hazard which your comment overlooks. It ignores the possibility—I would say the certainty—that it was a wise constitutional intent that the court play no role in an impeachment investigation, except to arbitrate those cases of conflicts among explicitly stated powers between government departments. What else can it mean, when the constitution says that the House has the "sole" power of impeachment?

So advice to get the Court involved strikes me as a foolish (and unconstitutional, in this instance) surrender of a power which properly resides only in the House. Nor does it seem, even if the Court did involve itself, and decide cases against the Trump administration, that any problem would necessarily be solved, instead of made worse. The great hazard is that the Court having no independent power of enforcement, Trump would simply ignore any decision he didn't like. Then the nation would truly be in a pickle, made worse by the initial decision to grant seeming legitimacy to the Court's intervention. Fear that that could happen might generate irresistible pressure on the Court to decide everything Trump's way, just to avoid the catastrophic national consequences if Trump defied a decision against him.

It seems wiser, and more in keeping with the Constitution, to keep as many impeachment questions as possible under control of the House, which has the power of impeachment and the power of the purse to compel obedience—with those powers further reinforced by the certain knowledge that as a political branch, the House has the sovereign power of the People backing everything.

[Brett Bellmore]

"To make it true, there would have to be some explicit constitutional grant to the executive that the impeachment investigation sought to breach. "

Why wouldn't an explicit statutory grant (Such as Barr is actually making.) be sufficient? Admittedly, Congress could breach such with legislation, but it would still have to get past a Presidential veto.

[Stephen Lathrop]

Because once again Brett, and this is getting tiring, a statute can't trump the Constitution. And the Constitution grants the "sole" power of impeachment to the House of Representatives. Which means nobody else, including SCOTUS, gets anything to say about it, unless some competing interest arises at the same level—which in this case includes explicit (or maybe implicit, N&P) Constitutional grants, and nothing else. Statutes and regulations are right out.

[Brett Bellmore]

And, again, the power to impeach is the power to impeach, and nothing more. They can impeach over anything they want, yes, even including a refusal to comply with their own demand that the AG commit a crime.

That doesn't mean they get to run rough shod over every law and constitutional provision that inconveniences them in the process. If they've passed a law saying grand jury information can't be divulged except for an enumerated set of reasons, and neglected to include impeachments in the list, they're out of luck. They can impeach Barr for refusing to violate their law, but that's all they can do.

Impeachment isn't a magic wand that erases all obstacles and commands obedience in all things. It's just impeachment.

[Stephen Lathrop]

No, Brett, it's impeachment, plus the necessary and proper powers required to make impeachment effective. Just as all constitutional grants of power include the necessary and proper powers to make them effective. Here is a bit more detail, in John Marshall's statement of the principle:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

By the way, that "spirit of the constitution" bit is not that the N&P clause constrains the enumerated power, but instead enlarges it. Marshall again: "Its terms purport to enlarge, not to diminish the powers vested in the government."

You, Brett, and Lee Moore, and others have all been arguing as if something about the N&P clause can legitimately be used to diminish the power of impeachment which the constitution vests solely in the House of Representatives. I suppose you think of yourself as libertarians, and that's what libertarians do—try to diminish the powers of the federal government. But I also think it's an appealing argument for you, because Trump is your guy, and you don't want to see him impeached—even if what he is doing is trying enormously to enlarge the powers of the executive branch.

[Allutz]

As far as I understand you think that the impeachment clause grants a Constitutional right to investigate. I do not see any reason for this. At the time of the Constitution's creation, the federal government barely had any law enforcement, and even less of an investigative force. They would have relied on the states and the press to expose evidence of wrongdoing and would have impeached based on that evidence.

In addition they could (with approval of the other house and overriding the veto) appropriate funds for investigations.

The impeachment power was created as a prelude to expelling President Benedict Arnold, VP Aaron Burr, and Judge Rose O'Neal Greenhow. It also exists as a political check on the other two branches from being too unpopular. If a judge in the 5th circuit starts approving the execution of 5 year olds for theft of candy, he might find himself impeached and removed. It was not created for nuance and the investigation of crimes of subtlety. That is because, at the time, it was presumed the federal government had no authority over the subtle.

[MP]

"impeach" is not some magic word that grants a Police power to the HoR.

[Stephen Lathrop]

Impeachment is not a police power function. It is a political function—one for which the House of Representatives is the best possible custodian.

[David Welker]

I agree. This is no constitutional crisis.

At the same time, although I did not follow the Fast and Furious issue much at the time it happened, I would not be surprised if at least some Republicans wrongly declared THAT a constitutional crisis just as Democrats are declaring THIS a constitutional crisis.

In Washington, a constitutional crisis is apparently not getting what you want. Both parties are guilty of serious levels of unhinged hyperbole.

On the merits, lets not forget that Thomas Jefferson defied a court subpoena issued by John Marshall in the Aaron Burr trial. So, we have a long history of the executive branch not complying with subpoenas. There is also a tradition of compliance with subpoenas though. But there is a practical problem. Neither the legislative branch nor the judicial branch have the power to enforce subpoenas on the executive branch. And I wouldn't buy that a long history of voluntary compliance with subpoenas implies a lack of power to not respond. These are co-equal branches of government, so the ability of one branch to "order" another are a difficult matter. It seems as though the sole realistic remedy in case of non-compliance with a subpoena is presidential impeachment. Or, a subsequent election, in which case the next party can disclose that which the previous office holder was hiding.

[Brett Bellmore]

I don't think F&F was a constitutional crisis. A scandal? Of course it was, Holder didn't refuse to comply with that subpoena for yucks, he did it because the truth there was pretty damaging. As is always the case, you don't do the coverup unless what you're covering up is worse than being seen covering up.

But not every scandal is a constitutional crisis.

[Stephen Lathrop]

Neither the legislative branch nor the judicial branch have the power to enforce subpoenas on the executive branch.

Yet shortly after writing that, you mention the imposing power of impeachment. Not to mention the power of the purse—which confers on Congress far more power to enforce against the executive than does any judicial ruling.

Congress can say to the President, "Do as we say on this, or you will have no money to do what you want to do on anything else." Indeed, it only takes the House of Representatives, not the whole Congress, to say that. That is very far from having no power.

[Bob from Ohio]

LOL. Dems not spending money.

Threats have to be credible.

[Lee Moore]

Congress can say to the President, “Do as we say on this, or you will have no money to do what you want to do on anything else.” Indeed, it only takes the House of Representatives, not the whole Congress, to say that. That is very far from having no power.

True, but it would be eccentric to argue that this was what is meant by a constitutional power. It's political power. Constitutionally, Congress has the power to levy taxes and authorising spending. or not, as it chooses. This obviously gives it political power in arguments with the President.

Thus it might use its constitutional power to try coerce the President into signing Bills he might otherwise choose not to sign. But that doesn't give Congress a constitutional power to force the President to sign Bills. It gives Congress the political power to coerce him. And vice versa. The President may refuse to sign a Bill unless Congress changes it to include his pet project, or exclude his pet peeve. He has no constitutional power to require Congress to change a Bill. His constitutional power is just to sign, or not. But he can use that constitutional power to exercise political power over Congress.

So when we're discussing what powers each branch of government has, it really makes little sense to include all the things that political power derived from your constitutional power might win you. Stick to the constitutional powers, and just accept that politicians will try to leverage them to ther best advantage.

[Stephen Lathrop]

Lee Moore, nothing eccentric about it at all. Political power was put into the constitution on purpose by the founders, as the basis of their system of checks and balances. In that respect, the founders were wise to choose the political branches, and not the courts. They understood that there is a good deal more real power in politics than any judge can ever dream of.

[Flight-ER-Doc]

Barr won't break the law.

Holder wouldn't follow it.

[awildseaking]

IANAL so take this with a grain of salt, but the counterargument here seems to be that as a part of a Constitutional ability to impeach, Congress must be able to investigate anything pertaining to impeachment, regardless of the content of said investigation. Maybe it's better for someone who isn't a lawyer to point this out, but I hope you can see the cause for alarm if Congress can just say "impeachment" and investigate anything and anyone they want. I seriously doubt that the founding fathers ever intended to create such a system and I think it's important to consider their intentions when discussing powers that are not explicitly stated in the Constitution.

[MP]

To take that idiotic argument all the way to its conclusion, the HoR can hire policemen, use them to arrest people, build Congressional jails, and convict individuals of failing to abide by their subpoenas, all because of the magic word "impeach". All of the power, none of the laws. That's quite the word.

[Voize of Reazon]

MP, I may be missing your sarcasm here, but what you have just described is called the inherent contempt power of Congress and was last used by the Senate in 1935. See this Congressional Research Service report beginning on page 10.

[Allutz]

1935 isn't a year where the government was known for its adherence to the Constitution....

[Bored Lawyer]

As an interesting addition to the debate here, it is apparently an open question whether and the extent that common-law privileges, like the attorney-client privilege, apply when responding to Congressional subpoenas. See here for a discussion: https://www.actl.com/docs/default-source/default-document-library/newsroom/attorney-client_relationships_2010_final-web.pdf?sfvrsn=4

That AC privilege is interesting because it is not Constitutional compelled, so arguably Congress does not have to recognize it.

As to Constitutional privileges, like the 5th Amendment, those the Supreme Court has apparently held to apply to Congressional subpoenas. See p. 3 of the link above