The standoff between House Democrats and U.S. Attorney General William Barr may be resolved in the courts if Barr declines to appear at to his scheduled congressional hearing on Thursday.
Barr is scheduled to appear before the House Judiciary Committee to discuss the findings and release of special counsel Robert Mueller’s report. On top of the traditional five minutes of questioning by each member of the committee, House Democrats want to an additional hour of questioning to the end of the hearing, with 30 minutes of questioning allotted to committee attorneys representing both majority and minority parties.
However, Barr warned that he might not sit for additional questioning. Justice Department spokesperson Kerri Kupec asserted that “members of Congress should be the ones doing the questioning.”
House Democrats have signaled they intend to pursue the questioning with Barr. “The witness is not going to tell the committee how to conduct its hearing, period,” Judiciary Committee Chairman Jerrold Nadler (D-NY) told CNN Sunday. If Barr doesn’t comply, “Then we’ll have to subpoena him and we’ll have to use whatever means we can to force the subpoena,” he said.
A staffer working for a senior Democratic member of the Judiciary Committee told ThinkProgress that any next steps by the committee need to be “above board” and with precedent so they do not give the Trump administration more excuses to slow the process further.
“Subpoena seems like the big tool. Anything else, we are going to start getting very creative, and the committee has done a lot of work to make sure that everything is above board, fair, and rational,” the staffer said. “If you have to wait three months for everybody you want to bring in here, it’s going to be a problem.”
Barr’s reluctance to testify is “startling,” said Victoria Bassetti, a fellow at the Brennan Center and former Senate Judiciary Committee staffer. The process to allow committee counsels to question witnesses is not common but not unprecedented, she said.
“[Barr] is a good lawyer and the attorney general of the United States. If he can’t handle it… I don’t know what is going on there,” said Bassetti, who was among the lawyers that oversaw the Senate impeachment trial of former President Bill Clinton.
“I suspect that he is basically just trying to find any excuse that he can not to appear because that is not a legit excuse,” Bassetti added.
If Barr ignores the subpoena and still refuses to show, there are a few tactics that the Judiciary Committee could use to compel him to show, according to Bassetti.
The committee could hold him in contempt of Congress and have its security force arrest and detain him. But that hasn’t been done in about 100 years and is an “unlikely” option, she said. It could also call on the U.S. Attorney for the District of Columbia to arrest Barr — but considering Barr is that attorney’s boss, that option is also unlikely, she said.
Congress could sue Barr for civil contempt and get a judge to force him to testify. The House Judiciary Committee pursued this route in 2007 when President George W. Bush’s counsel Harriet Miers refused to testify about her role in the removal of a number of U.S. attorneys. Congress voted to hold Miers in contempt, the Justice Department refused to prosecute her, and Congress pursued a civil suit against Miers in D.C. court. A lower court ruled that Miers had to comply with the subpoena, but the case dragged on in appeals, and the 110th Congress’ contempt charge expired when its term did.
“They could do it [to Barr] but it takes a long time,” Bassetti said.
She said the most likely scenario would be a negotiation between the committee and the Justice Department to arrive on some kind of acceptable format. While such a battle over 30 minutes of questioning may seem like a benign issue, it could set precedence for future hearings involving current or former Trump administration officials who have been subpoenaed by Congress.
Bassetti said the traditional format of five-minute rounds of questioning by committee members is ineffective, and the Trump administration “benefits from the scattershot questioning system that the House Judiciary Committee has traditionally used,” she said.
“I don’t think the House Judiciary Committee will ultimately give into this. They will find a way for the committee counsel to do questioning or have essential questioners rather than member-to-member, as they have done,” she added.
But if the two sides don’t come to an agreement, the House Judiciary Committee would likely turn to the courts to compel Barr to testify, even if it takes a while, Bassetti said.
“This is just not the sort of thing you can let fly,” she said. “The attorney general doesn’t get to tell Congress how to hold its hearings.”