What's Really Going on in the Subpoena Fight Between William Barr and Jerry Nadler

[babylonsister]

https://slate.com/news-and-politics/2019/05/william-barr-jerry-nadler-subpoena-mueller-report-congress-impeachment.html

What’s Really Going on in the Subpoena Fight Between William Barr and Jerry Nadler
By Frank Bowman
May 03, 2019
4:16 PM


snip//

But Barr’s choice, to decide in Trump’s favor the question of presidential guilt that Mueller had left open, did more than merely get out front of the news cycle. Critically, both Barr’s original letter claiming to summarize Mueller’s principal conclusions before the report’s release and his Senate testimony dovetail with the Boyd letter denying the House access to the Mueller evidence. By narrowly framing Mueller’s investigation and the resulting report as merely another criminal case over which Barr as AG has the final say, Barr effectively rescinds or nullifies Mueller’s implied invitation to Congress to take over where he left off. This framing also strengthens the argument in the Boyd letter that congressional requests for criminal investigative materials exceed its oversight authority and violate a norm against political interference in the federal criminal process.

In the end, the House Judiciary Committee would probably win a subpoena fight grounded purely in their oversight powers, but it would be a complex, protracted, and nuanced battle. Nadler could dramatically strengthen the House’s legal position and effectively neutralize all the arguments in the Boyd letter by declaring plainly that the committee’s request is made pursuant to the House’s constitutional authority to investigate impeachable conduct by a president. There is no legally supportable ground to refuse an evidentiary request made by Congress on that basis, and it would add an urgency to the proceedings that would surely expedite them.

From Nadler’s perspective, the problem with this easy solution is political, not legal. He and House Speaker Nancy Pelosi are deeply reluctant to make the formal declaration that the House or any committee is conducting an impeachment investigation. Because once they do so, they’re locked into following the evidence wherever it leads—and as a factual and constitutional matter, it probably leads to the conclusion that Trump has engaged in conduct traditionally considered high crimes and misdemeanors. But the Democratic leadership doesn’t want to be shunted onto that track with no way off it given the near-certainty of acquittal in the Senate, whatever the strength of the evidence, and the risk of losing the war of public opinion and thus the 2020 election.

For House Democrats, it’s an exquisite and agonizing dilemma. Their indecision is evident in Nadler’s letter on Friday responding to Boyd. He delicately dances around the question, referring to Congress’ “constitutional, oversight, and legislative interest in investigating misconduct by the President and his associates,” but he will not even pronounce the deadly word “impeachment.”

The Democrats’ discomfort is so evident that one is tempted to speculate that Barr is consciously trying to force Nadler and the House to assume a legally correct, but politically hazardous posture.

Barr’s performance in his second go-round as attorney general should disappoint any friend of American constitutional government and an independent Department of Justice. As a partisan street fighter, though, he’s demonstrated a special flair for political jiujitsu.

[empedocles]

1. Strong perspective. Must reading.

[empedocles]

2. Was impressed by this Bowman article. Ex-prosecutor, widely published,

appears to be visiting professor at Georgetown Law.

His current location seems to be convenient - we may be hearing more about and from him. Hope so.

[spanone]

3. A great and sobering read. Explains the certain dilemma.

[hlthe2b]

4. I'd like to suggest House Counsel petition the US District Court for DC to expedite subpeonas and

challenges for witness testimony. All of these subpoenas are going to be essentially identical in legal arguments, so surely they could develop a mechanism for arguing and jointly deciding them. If they can get this done, the other issues, including unredacted Mueller report and related challenges might well be incorporated. While some of this can be appealed all the way up to SCOTUS, having a DC District Court expedite the path might well be decisive enough that appeals courts and even SCOTUS make clear they aren't going to hear repetitive arguments on the same issue already settled by lower courts.

That said, in my fantasies, there are 2200 Capitol Police who report ultimately (lots of layers between) to the Sergeant at Arms for the House; send 'em down to enforce a contempt citation. Yeah, i know this would open up the gates to Hell, but maybe we NEED to.

[spanone]

5. Kick!

[Buckeyeblue]

6. Sometimes you can't walk the tightrope. You just need to be aggressive.

I've been anti-impeachment for a while. But I might be changing my mind. If the House could build a really strong case that the simpleton public could understand, I think they should do so. And then they could let the Republicans in the Senate explain why they were going to acquit.

[empedocles]

7. The article clearly laid out, what Pelosi almost certainly knows, the impeachment dilemma.

Impeachment is a huge problem. Not a pragmatist v. progressive issue. Not a problem for political subgroups' impulses.

[Buckeyeblue]

8. You're right. It is complicated.

Which is why the frivolous impeachment of Clinton made him more popular. But I don't think it hurt the Republicans all that much. They got back the presidency in 2000. And have really been off and running ever since, save for 2009-2010 when we had the House, Senate and Presidency.

I think if they can build a strong case, they should impeach. And then let the Senate explain to the public why they are going to acquit.

But it has to be a strong case. And the Democrats need to be able to explain it to the people simply. If they can't build that type of case, then don't do it.