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CONTEMPT OF CONGRESS: THE TOOTHLESS TIGER

This article was prepared exclusively for the New York Analysis of Policy & Government by the distinguished retired judge, John H. Wilson.

It has been a tough month for Attorney General William Barr.  

On June 11, 2019, by a vote of 229-191, the House of Representatives voted to hold AG William Barr in civil contempt of Congress.  At least, that is the breathless way House Resolution Number 430 has been reported in the media.  In reality, the Resolution authorizes “the chair of the Committee on the Judiciary…to initiate or intervene in any judicial proceeding before a Federal court to seek declaratory judgments and any and all ancillary relief…affirming the duty of…William P. Barr, Attorney General…to comply with the…subpoena that is the subject of the resolution…”

The measure arises out of the House Judiciary Committee’s on-going attempts to secure an unredacted copy of the Mueller Report from the Department of Justice.  The Chairman of the Committee, Rep. Jerry Nadler (D-NY), went forward with the Resolution despite receiving an agreement from the Justice Department to provide Congress with more of the evidence upon which the Muller Report is based.  

The next day, On June 12, 2019, the House Oversight Committee voted to actually hold AG Barr in Contempt for his refusal to comply with another subpoena.    Ostensibly, the Committee is investigating the addition of a question regarding citizenship on the 2020 census, a hot-button issue for Democrats.  However, the issue of whether or not this question can be added to the census is currently before the US Supreme Court, with a decision due any day now (as of this writing).   

The Chairman of the House Oversight Committee, Rep Elijah Cummings (D-MD) refused to postpone the Contempt vote, even after being told that the Trump Administration had asserted Executive Privilege over certain documents considered protected by the Attorney-Client privilege. It should be noted that the Trump Administration has also asserted Executive Privilege over many of the documents sought by the House Judiciary Committee.    

Of more concern is the actual holding of AG Barr in Contempt of the Oversight Committee.  The Committee can now recommend to the full Congress that the Attorney General be held in Contempt of Congress.  What would happen next?  Congress can then make a referral of prosecution – to the Department of Justice.  Will AG Barr prosecute himself, or assign an Assistant United States Attorney to prosecute him?

The answer is, not bloody likely.

In fact, the Attorney General, and other Trump Administration officials involved in these Congressional investigations are but pawns in a war being waged against the President by Congressional Democrats.

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After the release of the Report of the Special Counsel, Robert Mueller, the reaction among leftists can be best described as…disappointed.  The New York Times reported that to liberals who had “built up fervent hopes that (the report) would bring Mr. Trump down…the report felt like a betrayal.”  The Washington Post’s Ronald Klain asserted that Robert Mueller had failed in his duty by not pursuing Trump and his family more vigorously, and then presaged the current rash of investigations with this concluding statement –  “If Congress allows his report to be the last word about accountability for the president and his people, it will fail its duty as well.” 

 One of the more interesting interpretations of the Mueller Report comes from Eleanor Stavinoha, who believes that “not only did the Mueller report protect the bourgeois state and its ability to reproduce the rule of capital, but the FBI was never going to threaten the state’s legitimacy in the first place.”  Her conclusion?  Capitalism is to blame for the Report of the Special Counsel.    (I’d explain her position further, but then you’d miss out on the fun of following the link and reading this outlandish piece of socialist rhetoric.)

Clearly, President Trump’s opponents had hoped to use the findings of the Mueller Report as the basis for the impeachment of the President.  But the unequivocal nature of the findings of a lack of collusion with the Russian government during the 2016 election, coupled with the equivocal findings on obstruction of justice make for an extremely weak case upon which to base an impeachment.

  Many bad things can be said about House Speaker Nancy Pelosi.  However, she has proven herself to be more politically astute than many Congressional Democrats.  While Alexandria Ocasio-Cortes (D-NY) and Maxine Waters (D-CA) call for impeachment and removal, Speaker Pelosi has repeatedly refused to join this chorus.   

What Nancy Pelosi understands, and the more radical members of her caucus do not, is that an impeachment of President Trump cannot be successful.  As the Mueller Report itself states, “unlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference.”  Further, “although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.”   

As every Criminal Lawyer knows, including the attorneys on Speaker Pelosi’s staff, to establish a crime, the prosecution must establish that a person had an intent to commit a crime (unless the crime is one of strict liability, such as Statutory Rape).  If President Trump was not involved in an underlying crime (ie, an attempt to illegally influence the outcome of an election), then his motive for trying to halt the investigation was equivocal at best.

The lack of a clear criminal intent in the President’s actions makes both prosecution for a crime and impeachment problematic at best.  Speaker Pelosi also understands that exoneration after impeachment could strengthen the President’s hand, and make defeating him in 2020 less likely.

Hence, Congressional investigations are the answer – the equivalent of the “death by a thousand cuts.”  Chairman Nadler knows that the majority of the materials he is requesting from the Justice Department are Grand Jury Minutes that are protected from release by federal law – yet, he demands their release from AG Barr.  Chairman Cummings knows that the citizenship question will be decided by the Supreme Court – yet still he demands attorney/client privileged documents and his Committee holds the Attorney General in Contempt.

“The Congress will continue to investigate,” Speaker Pelosi has vowed.  In the meanwhile, Attorney General Barr better get used to being held in contempt by this Congress.

Photo: Official photo of William Barr (DOJ)

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Mueller Report: End or Beginning Part 2

Conclusion of an analysis by the distinguished retired judge John H. Wilson

D. Can President Trump be prosecuted for Obstruction of Justice?

While it is highly debatable whether these actions constitute the crime of Obstruction of Justice, what is not debatable is that the President, while in office, cannot be prosecuted.  The Office of Legal Counsel issued an opinion, cited in the Mueller Report, which states that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”  While the Special Counsel accepted this restriction, the Report notes that “a criminal investigation during the President’s term is permissible,” and “a President does not have immunity after he leaves office.” 

In his now infamous letter, Attorney General William Barr made it clear that “Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”  This decision was based upon a lack of criminal intent on the part of President Trump – “the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent.”  It was also made “without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”

  Recently, a petition signed by, at last count, just over 800 former federal prosecutors, states that “each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”  Interestingly enough, this group of experienced lawyers do not state anywhere in their position paper which specific statutes they believe the President violated – there is only a general statement that Mr. Trump’s actions constitute “obstruction of justice.”  

Setting aside the obviously political nature of this petition (this author has been unable to locate a similar petition regarding the decision of AG Loretta Lynch to not prosecute Former Secretary of State Hillary Clinton), the only real recourse left for those who disagree with AG Barr and Deputy AG Rosenstein’s assessment is the one currently being championed by Congressional intellectuals like Maxine Waters (D-CA) and Alexandria Ocasio-Cortes (D-NY) – impeachment.

E. Can President Trump be impeached based upon the findings of the Mueller Report?

 Under Article II, Sec 4 of the US Constitution, “the President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  It is important to understand that a “misdemeanor” is not only a violation of a minor criminal statute –  “John Randolph Tucker explained that it was ‘a synonym for misbehavior’; and Webster’s original dictionary defined it as ‘ill behavior, evil conduct, fault, or mismanagement.’” 

Currently, an Article of Impeachment is pending before Congress – House Resolution 705, sponsored by Rep. Al Green (D-Tx).  However, the sole ground for impeachment stated in this bill accuses the President of a “high misdemeanor” – “his bigoted statements (have) done more than simply insult individuals and groups of Americans, he has harmed the American society by attempting to convert his bigoted statements into United States policy.”  This allegation relates specifically to the so-called “Muslim ban” on immigration from certain countries associated with terrorism activities; barring transgendered persons from serving in the military; comments made during the Charlottesville riots; and disparaging comments about third-world countries.

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 Obviously, this bill, pending since January of 2018, is going nowhere.  But clearly, Articles which allege that the President used his authority to attempt to convince members of his Administration to halt an ongoing investigation are far more serious, and could potentially form the basis for a “misdemeanor,” ie, “ill conduct…mismanagement.”

Given that President Clinton was impeached for making false statements, under oath, regarding his affair with a White House intern, the possibility of an impeachment of President Trump based upon the findings stated in the Mueller Report is substantial.

          F. Could President Trump be removed from office?

   Despite the very clear and unequivocal evidence that President Clinton had lied, the Congress still acquitted him.  As explained by University of North Carolina professor Michael Gerhardt, “impeachments require a significant amount of political will…an impeachment will take up a lot of a Congress’s time and energy, and congress members who support impeachment have a lot to lose and potentially little to gain by undertaking an impeachment.”  

Is there the political will to remove President Trump from office?  Several of the Democratic candidates for President, including Senator Kamala Harris (D-CA) and Senator Elizabeth Warren (D-MA) think so.  But in the House of Representatives, Speaker Nancy Pelosi is not ready to take this step.  Instead, she is calling for aggressive investigations of the President, no doubt hoping for some better evidence.

This would explain the broad subpoenas issued by the House Judiciary Committee, and the holding of AG William Barr in contempt for not appearing before the Committee and letting himself be cross-examined by staff members rather than sitting Representatives.    But as reported in Politico,  “Speaker Nancy Pelosi and her leadership team worry that such moves, while pleasing to a party base that loathes the president, would backfire and boost Trump politically.”

Alexander Graham Bell is credited with stating, “When one door closes, another door opens.”  The door may be closed on the Mueller Report – but the door stands wide open on the possibility of impeachment.

Photo: Official Congressional photo