Faced with President Trump’s refusal to turn over documents or to allow some former aides to testify, Democrats are worried that the legal clashes ahead could take years to resolve in federal courts. Such delays would leave their investigations into Russian interference in the 2016 presidential campaign, as well as potential conflicts of interest in Trump’s businesses, effectively stalled well beyond the 2020 elections.
Some Democrats point to the House GOP’s investigation into a gunrunning program by the Justice Department that began with Attorney General Eric H. Holder Jr. being held in contempt of Congress in 2012 and ended just a few weeks ago.
“We cannot wait seven years,” said Rep. Gerald E. Connolly (D-Va.), a senior member of the House Oversight Committee.
Connolly also falls into the camp that thinks Trump officials will not feel any shame or taint if the House approves contempt charges against them, both because contempt citations are now more common and because this particular president has made fights with Congress such a hallmark of his tenure.
“From their viewpoint, it’s a badge of honor,” Connolly said of contempt citations.
Democrats privately acknowledge that they are looking for smart advice that would help them in the federal courts and in the court of public opinion.
“They need to keep the pot boiling. They’ve got to keep the hearings going,” said Charles Tiefer, a professor at the University of Baltimore School of Law who served in the House general counsel’s office.
Kerry W. Kircher, who spent five years as House general counsel, said that Democrats are doing the “stuff that you have to go through” but that getting to the truly big hearings and documentary evidence they are demanding could take some time.
Tiefer served as acting general counsel and, before that, deputy counsel in the House and Senate in the 1980s and early 1990s. Kircher served as deputy counsel last decade during the first speakership tenure of Rep. Nancy Pelosi (D-Calif.) and this decade during the tenures of Speakers John A. Boehner (R-Ohio) and Paul D. Ryan (R-Wis.).
Tiefer served as a counsel on a special committee investigating the Iran-contra scandal, and Kircher worked on the two most recent executive-privilege fights, during the final years of the George W. Bush administration and then in the Obama administration as the House investigated the gunrunning program known as “Fast and Furious.”
President Trump has asserted executive privilege in refusing Congress’s request for the unredacted report from special counsel Robert S. Mueller III’s investigation into Russia’s election interference and is blocking the testimony of former White House counsel Donald McGahn. Treasury Secretary Steven Mnuchin has also refused to turn over Trump’s personal tax returns to the House Ways and Means Committee; the panel subpoenaed the Treasury Department and IRS on Friday.
The Democratic response has been contempt of Congress citations — the House Judiciary Committee approved one against Attorney General William P. Barr on Wednesday and is threatening McGahn with one if he does not appear at a hearing this month.
These will almost certainly lead to legal confrontations, and Kircher and Tiefer both said that Democrats needed to focus on trying to make the cases as simple as possible for the federal courts.
Kircher likens some portions of the current standoff to the 2007 showdown between Democrats and Bush’s top advisers, Joshua Bolten and Harriet Miers, then the White House chief of staff and counsel, respectively. By early 2008, after Miers refused to testify about her insights into the firings of federal prosecutors and Bolten refused to turn over documents, the House voted largely along party lines to hold the officials in contempt.
Knowing that the U.S. attorney for the District of Columbia would not enforce the contempt charge on a criminal basis, Democrats also pursued the case in federal courts with a civil suit demanding action.
Democrats hoped that the contempt charge might spur more negotiations, but deep down, they knew that this was mostly a legal check-the-box procedure: They had negotiated throughout 2007, to no avail, and the federal prosecutors declined to intervene.
“Maybe, just maybe, there’s some shame out there,” Kircher said. “And in any event, you want to be able to tell the courts you jumped through all the hoops: ‘You’re all that we have left.’ ”
Less than six months later, Democrats won in court, and a year after the initial contempt finding, Miers testified.
Kircher sees similarities in the push to get McGahn to testify and for Barr to release the full Mueller report. “They appear to be pretty easy cases to litigate, both legally and factually,” he said.
Tiefer said McGahn’s status as a former, not current, employee will help bolster the Democratic case, along with the fact that Trump allowed his former counsel to testify before prosecutors without asserting privilege.
He also thinks that the Ways and Means Committee, which has a statutory right to review tax records, has strong standing.
The more difficult process, according to Tiefer and Kircher, will be larger data requests, such as for the underlying documents in the Mueller probe, materials that have not been released or extensively reviewed by the Justice Department.
Those requests might begin to look like the “Fast and Furious” investigation, during which the federal courts had to examine extremely detailed documents that had not previously been reviewed and logged.
That case spiraled into a legal abyss and was resolved only this year.
Pelosi is hoping that shame ultimately will work.
She has argued that contempt charges taint reputations and that someone like Barr, a decades-long creature of Washington’s legal community, might negotiate a settlement to avoid that vote.
“Do you want to have a contempt of Congress against you? That is not a desirable thing for someone to have,” she told reporters Thursday.
But the contempt citation has become more commonplace over the past decade. Bolten, Miers and Holder have all been held in contempt, and Barr and others appear headed for that distinction.
Bolten is now president of the Business Roundtable, one of the most prominent lobbying organizations in Washington, and Holder runs a notable liberal group pushing for a new process of drawing congressional districts.
He even considered running for president.