Constitutional Law

House panel recommends contempt for Barr after Trump asserts privilege; is constitutional crisis ahead?

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Donald Trump

President Donald Trump. Frederic Legrand - COMEO/

Updated: The House Judiciary Committee voted Wednesday to recommend that Attorney General William Barr be held in contempt for refusing to comply with a subpoena for the unredacted Mueller report and the underlying documents.

The recommendation, which split along party lines, now goes to the full House. The Washington Post, the New York Times, the Wall Street Journal and Politico have coverage.

The vote followed President Donald Trump’s assertion of executive privilege to prevent release of the documents.

Assistant Attorney General Stephen Boyd told the House Judiciary Committee that the decision to invoke executive privilege was necessary because of its insistence on holding a contempt vote.

Boyd’s May 8 letter said complying with the subpoena would violate the law, court rules and court orders. Barr previously has said the law bans release of grand jury materials.

The formal assertion of executive privilege is Trump’s “first use of the executive authority in the escalating confrontation with Congress,” according to the Washington Post. After the contempt vote, the New York Times reported, “it seemed all but inevitable that the competing claims would have to be settled in the nation’s courts rather than on Capitol Hill.”

In a statement, White House press secretary Sarah Huckabee Sanders said neither the White House nor Barr will comply with “unlawful and reckless demands” by House Judiciary Committee Chairman Jerrold Nadler, a New York Democrat.

Nadler said, however, that Trump’s claim of executive privilege was “utterly without credibility, merit or legal or factual basis” because the privilege was already waived. Nadler is seeking the documents for a probe into whether Trump obstructed justice.

On Tuesday, White House counsel Pat Cipollone told the House Judiciary Committee that documents subpoenaed from his predecessor, Don McGahn, are protected from disclosure “because they implicate significant executive branch confidentiality interests and executive privilege.” The Department of the Treasury also has refused a request for Trump’s tax returns.

One limit on congressional power to subpoena information was imposed by the U.S. Supreme Court in a 1957 decision, Watkins v. United States, the New York Times reported in another story. The McCarthy-era decision barred inquiries into “the private affairs of individuals without justification in terms of the functions of Congress.”

Despite that limit, legal experts told the New York Times that the showdown between Trump and congressional Democrats was so unusual that it could create a constitutional crisis.

“A president who refuses to respond to congressional oversight is taking the presidency to new levels of danger,” said William Marshall, a law professor at the University of North Carolina law. Not responding to such oversight “is to literally say that you’re above the law and you’re above the Constitution,” he said. “There’s nothing in history that comes even close to that.”

John Yoo, a law professor at the University of California at Berkeley, told the New York Times that the unusual aspect of Trump’s approach was the blanket refusal to comply. “There are very extreme bargaining positions on both sides,” he said. “And there are fewer people who are interested in following institutional accommodations that have always gone on.”

Updated May 8 at 4:05 p.m. to report on Barr’s contempt vote.

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