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Does Congress Have The Power To Hold AG Barr In Contempt?


Attorney General William Barr was a no-show today at a House Judiciary hearing. He was set to face questions about the Mueller report. Democrats who control the committee were planning to use staff attorneys to ask Barr many of the questions, a condition Barr refused to comply with. Now House Democrats have threatened to hold the attorney general in contempt of Congress. So how much power does Congress actually have to force Barr's hand here? To help us answer that question, we're joined now by Julian Epstein, former House Judiciary counsel. Welcome.

JULIAN EPSTEIN: Pleasure to be with you.

CHANG: OK. Before we even get to the contempt question, Barr cannot be held in contempt before he is subpoenaed, and that hasn't happened yet, right?

EPSTEIN: Hasn't happened yet, but I expect that Chairman Nadler, if they don't come to some accommodation, will issue a subpoena momentarily.

CHANG: OK. And how typical is it for someone to just ignore a subpoena from Congress?

EPSTEIN: Extremely atypical, particularly for the attorney general to ignore a subpoena from the Judiciary Committee 'cause the Judiciary Committee as the authorizing committee and the oversight committee for the Department of Justice. So it's very, very atypical.

CHANG: Well, I'm interested in the process that would ensue here. Let's say it does get to the point where Barr gets subpoenaed, he still refuses to testify and then Congress votes to hold him in contempt. Then what happens?

EPSTEIN: Then there are three options. The Congress could refer it to the U.S. attorney for criminal prosecution of contempt. They could use another process called inherent contempt where they use the sergeant of arms to literally go out and arrest the attorney general and put him in the House jail, which is a very, very unlikely option. And the more likely option is that the House would direct counsel to go to court and try to enforce the subpoena civilly.

CHANG: Well, to the extent that Congress would normally need the Justice Department's help to pursue any of those options, how would that work out in this particular case when the guy that they're trying to hold in contempt runs the Justice Department?

EPSTEIN: What would happen in a civil contempt is that you would basically be trying to hold the attorney general - get a court order that he was in contempt. And the court would have a hearing. And Justice Department would intervene, and they would fight the contempt citation. And then the court would have a ruling. And that's how the process kind of operates theoretically. What normally happens is the court does not like to step into executive legislative disputes, and they will urge both sides to try to accommodate one another. I think it would only be if the court determined that the Justice Department was really in bad faith would they then hold the attorney general in contempt.

CHANG: Let me ask you this. If this matter does land in court, if litigation is actively pursued, that could take months. It could take years even. And if the goal is to get information from Attorney General William Barr, how is this an effective strategy? Pursuing a contempt case could result in a huge delay, right?

EPSTEIN: I think the reality is is that the rules of subpoenas right now as we're discussing in many ways work in favor of the executive for the exact reason that you are hinting at in your question, which is they can run the clock. They can probably run the clock on the enforcement question for months, if not years. And they might be able to even run it up to the next election.

CHANG: Right. So if the White House intends to stonewall, do you think it's even a wise strategy on the part of the Democrats right now to be talking about contempt?

EPSTEIN: Well, so I think it cuts both ways. If the White House wants to stonewall, what they will effectively do is keep the Russia investigation on the front pages up and through the election. And I think it's a very, very bad strategy for the White House. I think just delaying compliance with these subpoenas only is going to increase the resolve of Democrats on the Hill to do more investigations. It's going to keep this issue on the front pages. And I think, in the long run, it's going to work against them.

CHANG: Julian Epstein was counsel for the House Judiciary Committee. He's now the CEO of LawMedia Group Inc. Thank you very much for joining us.

EPSTEIN: Thanks for having me today. Transcript provided by NPR, Copyright NPR.

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