Ineffective Democrat subpoenas

A House panel voted yesterday to authorize subpoenas to obtain Robert Mueller’s full report on Russian interference in the 2016 election. The vote was strictly along party lines.

Democrats aren’t going to issue the subpoena yet. First, they will negotiate with the Justice Department.

But Democrats are holding a losing hand. This subpoena, like all the others House Democrats are thinking about issuing, cannot, in all likelihood, be effectively enforced.

The normal enforcement mechanism for a subpoena is to cite for contempt the party that refuses to comply. But it’s up to the Justice Department to prosecute that case. The DOJ isn’t going to prosecute its head.

There’s precedent for not prosecuting in these circumstances. The Justice Department declined to prosecute when then-Attorney General Eric Holder refused to comply with a congressional subpoena seeking documents related to the “Fast and Furious” scandal. Indeed, the Justice Department is most unlikely to bring an action for contempt against any part of the Executive branch.

Congress can proceed without the Justice Department by bringing its own action in federal court to compel compliance. But the judicial process doesn’t move quickly enough for this option to bring about the result Democrats desire.

For example, Holder refused to comply in 2012. It wasn’t until 2016 that a district court ruled in favor of Congress. Holder was out of office by then. The parties proceeded to settle the dispute (though it still hasn’t fully been resolved). Had they not settled, the matter would have dragged on through the appellate process.

One can imagine liberal judges moving faster in the case of the Trump presidency than they did during the Obama administration. Even so, time is not on the Democrats’ side.

If Trump loses in 2020, the new Attorney General could authorize release of the full, unredacted Mueller report. But with Trump out of office, few will care about the Mueller report.

If Trump wins and the GOP recaptures the House in 2020 (or 2022 if the matter is still being litigated), the House would almost certainly relent in the dispute over the subpoena. If Trump wins, and Democrats keep control of the House, and they prevail in the litigation (very unlikely, given the likely existence of classified information in the report), the full report might see the light of day in, say, 2023. But few will care about it in the context of a lame duck president.

Recognizing the likely futility of proceeding in court, Democratic attorney/operative Neal Katyal suggests that if Barr won’t turn over Mueller Report to Congress in the form Democrats desire, the House should defund the Office of the Attorney General and Barr’s salary. I doubt that Barr needs his salary, and I don’t think the Democrats would be well-advised to incapacitate the Department of Justice over redactions in the Mueller report.

If Democrats try this move, we can expect Republicans to behave similarly when they control the House. We will be well down the road to becoming a banana republic.

Meanwhile, I hope Republicans remember Katyal’s recommendation when, almost inevitably, some Democratic president nominates him for a job requiring Senate confirmation.

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