WASHINGTON (CN) – As Attorney General William Barr and former White House counsel Don McGahn await possible contempt proceedings, House lawmakers voted Tuesday to pass a resolution allowing congressional committee chairs to enforce subpoenas in court if their requests go ignored.
Tuesday’s 229-191 vote largely along party lines came merely 24 hours after House Judiciary Committee Chairman Jerry Nadler, D-N.Y., announced a deal had been struck with the Department of Justice to hand over some underlying materials from special counsel Robert Mueller’s report on Russian interference in the 2016 election.
Nadler sought interview notes, first-hand public testimony and other evidence tied to the report, which he has argued could provide clearer insight into potential obstruction of justice by President Donald Trump.
While opponents of H.R. 430 argue Democrats are pointlessly strong-arming the Justice Department to gain access to the information and score political points, its proponents contend the resolution is necessary since the White House has regularly moved to limit congressional scrutiny.
“We cannot tolerate a posture from the president of the United States of non-cooperation and absolute comprehensive wholesale defiance of the will of congress in trying to seek information,” Representative Jamie Raskin, D-Md., said during a debate on the resolution Tuesday.
Last month, the White House instructed McGahn not to testify before Congress and the Justice Department’s Office of Legal Counsel released a 15-page opinion stating that Congress does not have the constitutional right to compel a president’s senior adviser to testify about their official duties.
The opinion also pushed back on an assertion by Nadler that McGahn is not subject to executive privilege rules since he waived the privilege without restriction when gave testimony to the special counsel’s team.
H.R. 430’s passage is a strategic success for Democrats, including House Oversight Committee Chairman Elijah Cummings.
Though Barr did not face a contempt vote by way of the House Judiciary Committee on Tuesday, Cummings has Barr – and Commerce Secretary Wilbur Ross - in his sights for a contempt vote on Wednesday for failure to comply with a subpoena seeking documents related to the addition of a citizenship question on the 2020 census.
Those documents include emails and a memo shared between the White House, Republican National Committee and Trump’s campaign team. Specifically, Democrats want access to a secret memo allegedly passed from a former Commerce Department attorney to Principal Deputy Assistant Attorney General John Gore that could reveal how officials decided to include the citizenship question.
The Justice Department has so far refused to allow Gore to testify without counsel present. Cummings has refused the offer, saying both Barr and Ross have been given “every opportunity” to produce records needed for an investigation.
Though Ross has insisted the decision to add the citizenship question came by way of a request from the Justice Department to strengthen the Voting Rights Act, documents published by litigants in New York challenging the inclusion of the census question show otherwise.
The court documents show that the now-deceased Republican strategist Thomas Hofeller may have had a role in getting the question on the census and believed that with its addition, Republicans and non-Hispanic white voters would be given an electoral advantage.
Democrats on the Oversight Committee have also claimed that the White House has “interfered directly and aggressively” to bar Kansas Secretary of State Kris Kobach from testifying.
According to a memo issued by the lawmakers last week, the White House sent multiple letters to the committee as they sought out Kobach, arguing he is immune to questioning since his testimony is protected by executive privilege.
Cummings, however, contends Kobach was not working for the Trump administration when he discussed adding the question. That conversation occurred during Trump’s campaign run, a full year before the Justice Department made any request to add it.
“Kobach confirmed on the record that he met personally with key White House officials just days after the president’s inauguration to discuss adding the citizenship question – including Chief of Staff Reince Priebus, Senior Adviser Steve Bannon and even President Trump himself,” the memo states.
The memo appears to conflict with statements Secretary Ross made to the committee in March, when he conceded to meeting with Kobach but said he “rejected the question” Kobach wanted asked.
With the resolution passed, it now means Chairman Cummings could potentially skip the contempt vote on Wednesday and move straight to the courts to enforce the subpoena.
A decision from the U.S. Supreme Court on whether the citizenship question can be added is imminent. Opponents argue its inclusion will spook undocumented immigrants from participating in the census, thereby skewing congressional and Electoral College apportionment.
While the House Oversight Committee could hold Barr and Ross in contempt on Wednesday, the Department of Justice sent a letter to Chairman Cummings on Tuesday afternoon stating that if Democrats insist on going forward, the department will be obligated to advise Trump to assert executive privilege “with respect to certain subpoenaed documents.”
The best course of action for the lawmakers, Assistant Attorney General Stephen Boyd wrote, is to delay the contempt vote until Trump can make a decision over whether to invoke privilege.
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