House Approves Move to Enforce McGahn, Barr Subpoenas in Court

U.S. Attorney General William Barr testifies before the Senate Judiciary Committee May 1, 2019. (Credit: Alex Wong/Getty Images)

U.S. Attorney General William Barr testifies before the Senate Judiciary Committee May 1, 2019. (Credit: Alex Wong/Getty Images)

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The House on Tuesday approved a resolution greenlighting the House Judiciary Committee to go to court to enforce its subpoena for former White House counsel Don McGahn’s testimony and to seek grand jury information from special counsel Robert Mueller’s report.

The resolution also authorized the House panel to take its subpoena of Attorney General William Barr to court, but an agreement struck between the Judiciary Committee and the Justice Department on Monday means the committee won’t take that action — at least for now.

The resolution passed 229-191.

The House did not vote on moving forward with a criminal contempt citation against either Barr or McGahn, as the resolution is only focused on civil court action to enforce House subpoenas.

The vote comes a day after House Judiciary Chairman Jerry Nadler announced his deal with the Justice Department to give the committee access to Mueller documents. Nadler is seeking notes authored by former White House officials and notes of the FBI’s interviews with witnesses, although the White House will likely have an opportunity to weigh in on congressional access to at least some of the documents lawmakers have demanded — a signal that a longer, more complicated process could be on the horizon.

In addition to the subpoenas for Barr and McGahn, the resolution also includes language empowering committees to go to court to enforce subpoenas in the future while bypassing a floor vote, a potential prelude to more litigation pitting the Trump administration against House Democrats.

Already, the House is fighting a number of lawsuits against the Trump administration as well as the Trump Organization, including related to the Affordable Care Act, Trump’s border wall and subpoenas to banks and accounting firms.

“The administration’s obstruction not only violates long established precedent, it endangers our very democracy,” House Speaker Nancy Pelosi said on the floor ahead of the vote. “(The Trump) administration has employed every tool it can find to obstruct legitimate committee oversight — everything from witness intimidation to blanket stonewalling to spurious claims of executive privilege, absolute immunity, and lack of legislative purpose.”

House Democratic aides expect that the House will move swiftly to go to court to try to force McGahn to testify after he skipped an appearance under subpoena last month.

“It is true that fact witnesses have been ordered by the White House not to appear before this committee, but we’ll get them,” Nadler said Monday.

But Republicans charge that the Democratic subpoena for McGahn is misguided. They issued a report ahead of Tuesday’s vote arguing that the White House, not McGahn, has control of the documents Democrats are seeking, that the committee has not addressed the White House’s claim of immunity from having the President’s close advisers testify and that the President did not waive executive privilege when McGahn spoke to the special counsel.

The Republican arguments in the report are likely to be similar to those that the Trump administration makes in court when it fights the subpoena.

House Minority Leader Kevin McCarthy accused Democrats of passing Tuesday’s resolution in a “desperate attempt to relitigate the Mueller investigation.”

“Democrats say we’re in a constitutional crisis and they’re right, but not because of Attorney General Barr. The true constitutional crisis is this: If Democrats can’t win, they change the rules,” McCarthy said.

While Nadler said Monday he would not take court action against Barr so long as the Justice Department acted in “good faith,” he also did not rule out doing so in the future if the Justice Department stopped cooperating.

“I am pleased that we have reached an agreement to review at least some of the evidence underlying the Mueller report — including interview notes, first-hand accounts of misconduct, and other critical evidence — and that this material will be made available without delay to members on both sides of the aisle,” Nadler said. “As a result, I see no need to resort to the criminal contempt statute to enforce our April 19 subpoena, at least for now, so long as the Department upholds its end of the bargain.”

But even before Nadler had struck the agreement with the Justice Department, the House had not planned to pursue criminal contempt of Congress on the House floor, as the resolution introduced last week only referenced the court action, which is known colloquially as “civil contempt.”

After Nadler agreed last month to narrow the scope of his subpoena — which initially asked for the unredacted Mueller report and all of the special counsel’s evidence — the Justice Department had said it could negotiate with the panel so long as contempt did not move forward.

A Justice Department official said the department views Tuesday’s vote as only dealing with court action, and not related to contempt.

But more contempt fights — and likely lawsuits — are looming. House Oversight Chairman Elijah Cummings announced Monday evening that his committee would vote Wednesday to hold Barr and Commerce Secretary Wilbur Ross in contempt of Congress over that panel’s subpoenas in its investigation into adding a citizenship question on the 2020 Census.

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