Tensions between Democrats, Justice cool for a day

Tensions between Democrats, Justice cool for a day
© Greg Nash

House Democrats and the Department of Justice (DOJ) on Monday de-escalated tensions in Washington for the first time in months by striking a deal that will provide lawmakers with critical documents underlying special counsel Robert MuellerRobert (Bob) Swan MuellerTop Republican considered Mueller subpoena to box in Democrats Kamala Harris says her Justice Dept would have 'no choice' but to prosecute Trump for obstruction Dem committees win new powers to investigate Trump MORE’s report on Russia's election interference. 

The agreement marks a rare case of cooperation between Democrats, who are pursuing investigations into whether President TrumpDonald John TrumpAmash responds to 'Send her back' chants at Trump rally: 'This is how history's worst episodes begin' McConnell: Trump 'on to something' with attacks on Dem congresswomen Trump blasts 'corrupt' Puerto Rico's leaders amid political crisis MORE obstructed Mueller's probe, and an administration that's largely rejected congressional requests for information and witness testimony.

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The breakthrough also seems to have defused — at least temporarily — a push by Democrats to punish key administration officials for their refusal to cooperate in the congressional probes. 

The House Judiciary Committee last month had voted to hold Attorney General William BarrWilliam Pelham BarrThe Hill's Morning Report - Trump seizes House impeachment vote to rally GOP DOJ, Commerce slam House Dems contempt vote as 'political stunt' White House blasts 'shameful and cynical' Barr, Ross contempt vote MORE in contempt of Congress for failing to comply with the panel’s subpoena for Mueller's full unredacted report and underlying documents.

But Democrats are now opting to bring to the floor a softer resolution, one that grants the Judiciary panel new legal tools to obtain disputed information and stops short of holding any individuals in criminal contempt.

"Given our conversations with the Department, I will hold the criminal contempt process in abeyance for now," Judiciary Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerTrump knocks Mueller after deal struck for him to testify House Democrats request briefing on Epstein, Acosta Nadler apologized after repeatedly calling Hope Hicks 'Ms. Lewandowski' at hearing MORE (D-N.Y.) said Monday in a statement announcing the deal. "We have agreed to allow the Department time to demonstrate compliance with this agreement.”

"If the Department proceeds in good faith and we are able to obtain everything that we need," he added, "then there will be no need to take further steps." 

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The agreement constitutes a victory for Nadler, who’s come under friendly fire from some Democrats for his handling of the Judiciary panel’s examination of Mueller’s findings, particularly the open question — left unanswered by Mueller in his 448-page report — of whether Trump obstructed justice during the course of the 22-month probe. Nadler is leading the negotiations to have the reluctant Mueller appear publicly before the committee, and some lawmakers are frustrated that the Judiciary chairman hasn’t secured the testimony nearly two months after Mueller’s report was released.

The DOJ’s decision also provides a temporary reprieve for Speaker Nancy PelosiNancy PelosiSally Yates: Moral fiber of US being 'shredded by unapologetic racism' Al Green calls for additional security for House members after Trump rally #IStandWithPresTrump trends in response to #IStandWithIlhan MORE (D-Calif.), who has been under similar pressure to demonstrate progress in the Democrats’ investigations of Trump’s alleged misconduct amid a growing clamor from liberal members of her caucus to adopt a more aggressive approach.

The president earlier this year had vowed to fight “all the subpoenas,” and the White House stonewalling has led dozens of Democrats to endorse the launch of a formal impeachment inquiry — a move Pelosi has long opposed for lack of popular support outside Congress.

Many impeachment supporters have argued that starting the process would lend the Democrats legal advantages to help them obtain the disputed information. The DOJ’s partial compliance with Nadler’s request gives Pelosi ammunition to say her strategy is working — without taking the divisive step toward impeachment.

Republicans also hailed the agreement as a rare show of comity on an issue that has practically been defined by partisan bickering.

Rep. Doug CollinsDouglas (Doug) Allen CollinsHouse unravels with rise of 'Les Enfants Terrible' Trump praises GOP unity in opposing resolution condemning tweets House votes to condemn Trump for 'racist comments' MORE (Ga.), the top Republican on the Judiciary Committee, said the administration’s “good faith provision ... debunks claims that the White House is stonewalling Congress.”

The Justice Department on Monday said it was “pleased” with the committee’s decision to continue negotiations without pursuing criminal contempt. However, the agency warned it would pull out of the talks if lawmakers move forward with the contempt resolution. 

“The Department of Justice remains committed to appropriately accommodating Congress’s legitimate interests related to the special counsel’s Investigation and will continue to do so provided the previously voted-upon resolution does not advance,” DOJ spokeswoman Kerri Kupec said in a statement. 

Even as criminal contempt appears to be off the table for now, the House is gearing up for a vote on a different resolution that would authorize Nadler to go to court to obtain the Mueller documents.

While lawmakers have described the resolution, scheduled for a Tuesday vote, as a contempt measure, the text itself doesn’t mention the word contempt.

And legal experts told The Hill that the resolution is not like the criminal contempt one approved by the House Judiciary Committee, where Democrats would have to ask the U.S. attorney for D.C. to pursue a case against the Justice Department to get the documents.

When faced with similar criminal contempt measures out of the House in the past, the U.S. attorney’s office has uniformly rejected the calls for prosecution. That scenario is all but certain to play out again if the House were to move forward with a criminal resolution.

Rather, this resolution would give Nadler the power to go to court for an order requiring the DOJ to hand over the documents he has sought. It also gives other committee chairs the authority to ask the Bipartisan Legal Advisory Group — a group of top lawmakers who oversee the House general counsel — for permission to file similar legal actions.

Thomas Spulak, who served as the general counsel for the Democratic-controlled House from 1994 to 1995, said the civil citation serves the same purpose as a contempt resolution in that they both seek to obtain documents and testimony otherwise unavailable to Congress.

But, he said, no one is being held in contempt in this case, unless the DOJ doesn’t comply with an order from a judge to hand over documents.

“We haven’t gotten to contempt yet,” Spulak said.

Tuesday's vote targets both Barr and former White House counsel Don McGahn, who have both rejected congressional subpoenas. 

And while Pelosi has pointed to Democrats’ legal victories in the Trump investigations as reason to hold back on impeachment, the lack of impeachment proceedings could end up hampering a court battle to get all of the redacted Mueller materials.

Some of the information not included in the public version of the Mueller report is information presented before a grand jury and can’t be released unless a judge decides it fits certain exemptions. One of those exemptions is for the material’s use in an impeachment proceeding. 

But with Democratic leadership ruling out that option for now, it’s unlikely at this point that a judge would order the Justice Department to hand over the grand jury information to Congress.