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House authorizes going to court over Barr and McGahn subpoenas

Attorney General-Alaska Natives
Atty. Gen. William Barr.
(Mark Thiessen / Associated Press)

House Democrats on Tuesday voted to authorize going to court to enforce their subpoenas against Atty. Gen. William Barr and former White House Counsel Donald McGahn, the most dramatic move yet to prod the Trump administration to respond to Congress’ oversight inquiries.

But the House stopped short of holding either man in contempt of Congress, a stronger action that was recommended last month by the House Judiciary Committee. The concession comes as the Justice Department has taken a more cooperative approach, agreeing Monday to turn over some documents related to special counsel Robert S. Mueller III’s investigation.

The emphasis on seeking relief from U.S. courts is also part of House Speaker Nancy Pelosi’s strategy of using litigation to confront Trump rather than opening an impeachment process, as some party progressives would prefer. Democratic leaders hope that federal judges will order Trump officials to comply with their subpoenas, giving further public legitimacy to their efforts and raising the possibility that administration officials could be held in civil contempt of court.

It’s also an acknowledgement that any vote to hold the men in criminal contempt of Congress would probably stall because the Justice Department would not agree to prosecute the cases.

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The 229-191 vote was entirely along partisan lines.

Democrats were unsure Tuesday on when or even whether they would take the case to court, hoping to use the threat as leverage as they continue negotiations for more documents.

“We’re not going to go to court against the attorney general so long as they in good faith do what they say they were going to do,” said House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.).

The measure the House approved Tuesday also granted committee leaders new power to go to court if the Trump administration defies future subpoenas.

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House Democrats voted to give all committee chairpersons authority to go to court with only the sign-off of a small group of five lawmakers, rather than seeking approval in a full House vote. Republicans said that would allow Democrats to avoid potentially difficult public votes on whether to pursue legal action against the Trump administration.

“What they are doing now is taking power away from Congress and putting it in a group of five people,” said House Minority Leader Kevin McCarthy (R-Bakersfield). “What the Democrat majority is doing is they’re trying to get to impeachment without having their members actually vote upon it.”

Democrats defended the move, arguing that they had little recourse when confronted with “unprecedented defiance of congressional power by the president of the United States,” said Rep. Jamie Raskin (D-Md.). The Trump administration has ordered several officials not to respond to congressional inquiries.

McGahn snubbed a demand to testify before a House committee last month, and Barr has refused to turn over the unredacted Mueller report into Russian election interference and possible obstruction by Trump.

The Justice Department, however, agreed this week to provide some of the underlying evidence behind the Mueller report to the Judiciary Committee, part of an agreement to stave off the contempt of Congress vote, according to House Majority Leader Steny H. Hoyer (D-Md.) and Nadler.

Nadler said the Justice Department is providing a less-redacted version of the second volume of Mueller’s report, the part that deals with potential obstruction of justice. Grand jury information will still be withheld. In addition, Nadler said committee staff had already been reviewing documents related to the investigation, and he said they expected to read witness interviews and other evidence.

Democrats appear divided on how quickly they should turn to the courts for help.

“I expect that we will not race to the courthouse” if the Justice Department continues to cooperate, said House Democratic Caucus Chairman Hakeem Jeffries (D-N.Y.), a member of the Judiciary panel.

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Others are more eager. Rep. Cedric L. Richmond (D-La.) said “today wouldn’t be too soon for me.”

Rep. Sheila Jackson Lee (D-Texas) said the current step allowed for continued negotiation as the House pursued legal action.

“We’ve been winning in the courts,” she said, referring to two recent victories where federal judges ruled that the Trump administration had to turn over documents in separate investigations. The vote Tuesday gives “blanket authority” to pursue more legal action, she said.

There is no guarantee that federal judges will side with Democrats or agree to get involved. Courts frequently prefer to stay out of political power struggles between the executive and legislative branches when possible.

Former Atty. Gen. Eric H. Holder Jr. was held in contempt by the Republican-led House in 2012 during the investigation into the “Fast and Furious” gun-tracking scandal. When the Obama Justice Department refused to prosecute the House’s criminal contempt case, Republicans turned to the courts in a civil action. That battle dragged on for years, and a settlement was reached only after President Obama left office.

Some suspect that the House’s legal case — if it lands in court — would be stronger if the House had voted to hold Barr and McGahn in contempt.

Barr’s conflict with the House will continue Wednesday when a separate House panel is scheduled to vote on whether to hold him and Commerce Secretary Wilbur Ross in contempt of Congress for withholding documents related to why the administration added a citizenship question to the 2020 census.

Republicans suggested that the Democrats’ threatened court action in Tuesday’s vote could be premature if the Justice Department continued to negotiate with the House.

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“This whole thing may be nothing more than sound and fury” from Democrats, said Rep. Tom Cole (R-Okla.).

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