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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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Personal Freedom Under Attack

As Independence Day approaches, it is appropriate to recall that individual freedom was the central concept that inspired the birth of the United States two hundred and forty years ago.

Increasingly, however, that idea is imperiled by the rapid growth of government power to limit the personal, economic, and political rights of citizens. Particularly over the past seven and one-half years, key portions of the Bill of Rights, which legally enshrines American freedom, have been frequently attacked, treated as an irrelevancy, or wholly ignored on both the state and federal levels. The First, Second, Fourth, Ninth and Tenth Amendments—one half of the entire document– have all been subjected to this.

Throughout most of U.S. history, freedom of speech has been considered the most precious of personal liberties, and the First Amendment had been treated as sacrosanct.  Disturbingly, that respect has sharply diminished in several ways. Campaign finance regulations seek to regulate how positions are publicized in elections. Obamacare demands that religious organizations put aside their beliefs. In many public and private colleges, students who stray from left-wing orthodoxy are penalized. Federal agencies have been hijacked for partisan use. Local governments have even become involved in the personal dietary choices of individuals. (Philadelphia recently imposed a soda tax, which may only be the first of laws throughout the nation that will infringe on the rights of people to determine what to eat or drink.)

The institutions of the national government, including the IRS and the Department of Justice, have been used to attack those that use their freedom of speech to lawfully disagree with the Executive Branch of government. Various state attorneys general have harassed think tanks that merely question the actions of the Environmental Protection Agency. The U.S. Attorney General has considered criminally prosecuting those that disagree with the White House position on climate change.

During her 2009 nominating hearing, U.S. Supreme Court Justice Elena Kagan refused to agree with the concept of unalienable rights, a foundational concept of America expressed in the Declaration of Independence itself as a reason for the separation from England.   In 2012, Justice Ruth Bader Ginsberg, speaking in Cairo, Egypt, said that if she were writing a constitution for a new nation, she wouldn’t use the U.S. constitution as a model.

The President has surrendered internet control to an international organization comprised of several member states that believe censorship is justifiable, and during his tenure in office, sought to have Federal Communications Commission monitors placed in newsrooms.

In the aftermath of the Benghazi attack, Mr. Obama and Secretary Clinton blamed an American video for the assault. Adding insult to injury, it turned out that the video had nothing to do with the incident, yet both still cling to the fabrication.
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Writing in MoodyMedia, Dr. Edwin Lutzer notes:  “The censurers, the radicals who are all too ready to deny freedom to those who disagree with them, are perceived in our culture as “tolerant,” and [those who disagree] are viewed as “intolerant.” In other words, the philosophy of the left is preach tolerance, but practice inflexible intolerance to anyone who has the courage to express a different point of view.”

Even in the conduct of our national safety, rather than give full-throated fury at the horrible philosophy of Jihadi extremists who perpetuated the devastating tragedies in Orlando, Fort Hood, and San Bernardino, U.S. government at the highest levels spoke with far more fervor about limiting the Second Amendment rather than increased military action against the bigoted radicals who hate personal liberty.

The misplaced emphasis on restricting the practice of freedom rather than attack those who would abolish it can also be seen in the continuing power of government to invade the privacy of the citizenry, in violation of the Fourth Amendment. Many small businesses have been jeopardized by financial regulations ostensibly emplaced to detect illicit foreign funds transfers, but which have in practice accomplished little or nothing.

There was a time when Americans jealously guarded their personal rights.  Over the past several years, however, Washington’s reflexive response to almost every problem has been to adopt new executive actions or agency regulations (Imposed without the consent of Congress by a President that ignores the Constitution’s Separation of Powers mandate and loudly proclaims that he “Can’t wait for Congress”) that don’t solve the issue at hand but further limit freedom.

This tendency was foreseen by the framers of the Bill of Rights, who, in the Ninth and Tenth Amendments, specifically limited the powers of the federal government, and even noted that powers not specifically mentioned in the Constitution belong to the people, not the federal government.

Throughout humanity’s long history, there have been many names for oppressive government: monarchies, dictatorships, Nazi, Fascist, theocratic, Communist and Socialist regimes.  Despite differing titles and symbols, all share the same over-arching philosophy: the power of government overrules the rights of individuals.  America must stop heading down that path.