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Nadler is going after Barr.
He has no choice.
If a contempt request or a perjury referral is sought against Barr, a contemporaneous motion for appointment of a Special Prosecutor can be filed for that proceeding due to Barr’s conflicts of interests in pursuing criminal contempt and/or perjury case against himself.
For those frustrated w Nadler’s attempts to negotiate a resolution of this matter, under the contempt rules, it is required that both parties make a showing in the record that they exhausted all attempts to resolve the matter without contempt as a remedy.
Please note: Congress has inherent contempt powers, which is different from seeking a judicial order of contempt to enforce a congressional subpoena. My comments above relate to the latter (judicial) scenario, for which I believe Nadler is setting the stage.
As for Congresses’ contempt authority, it’s been codified. 2 U.S.C. §192: a person who has been “summoned as a witness” by either House or a committee to testify or to produce docs & who fails to do so, or who appears & refuses to respond to questions, is guilty of a misdemeanor.
This is punishable by a fine of up to $100k and imprisonment for up to 1yr. 2 U.S.C. §194 establishes procedure to be followed by House or Senate when refering a recalcitrant witness to the courts for criminal prosecution rather than try him at the bar of the House or Senate.
Under the procedure outlined in Section 194,142 “the following steps precede judicial proceedings under [the statute]: (1) approval by committee;143 (2) calling up and reading the committee report on the floor;
(3) either (if Congress is in session) House approval of a resolution authorizing the Speaker to certify the report to the U.S. Attorney for prosecution, or (if Congress is not in session) an independent determination by the Speaker to certify the report;144 [and]
(4) certification by the Speaker to the appropriate U.S. Attorney for prosecution.”145
Citation references above are contained in this document:
Then-DAG Barr issued guidance in 1989 about congressional requests for confidential executive branch info: "Only when accommodation process fails to resolve a dispute and a subpoena is issued does it become necessary for the president to consider asserting executive privilege".
Clinton asserted executive privilege when he testified bf the grand jury called by Kenneth Starr. Declaring "absolutely no one is above the law", Starr said such a privilege "must give way" and evidence "must be turned over" to prosecutors if it’s relevant to an investigation
Bush administration invoked executive privilege on six occasions. In a separate Supreme Court decision in 2004, Justice Kennedy noted "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked.' United States v. Reynolds, 345 U.S. 1, 7 (1953).
On July 25, 2007, the House Judiciary Committee voted to cite Presidential Counsel Harriet Miers and White House Chief of Staff Joshua Bolten for contempt of Congress after Bush asserted Executive Privilege.
We need to back up just a bit to that Arpaio pardon. There is more than meets the eye to that situation, as we will soon learn.
Arpaio’s conviction was for federal JUDICIAL contempt order and thus the pardon was a rejection the balance of power.
Trump’s pardon of Arpaio was a setting of the table for what is certainly to come — it was a clear message sent by Trump to his co-conspirators that he will pardon them if they endure judicial contempt.
Thus, the one advantage of utilizing Congressional contempt procedures, rather than judicial contempt, is it arguably removes the pardon dangle (which should never exist with judicial contempt anyway — I believe it is unconstitutional).
Judicial contempt (like congressional contempt proceedings) are way for the judiciary to manage its docket and its constitutional charge. Allowing the executive branch to interfere (neuter) the judiciary’s powers of contempt via pardon power is, I believe, unconstitutional.
I’m not an expert on these matters. I assisted in research & writing white papers and FAS documents on issues relating to FOIA, impeachment and presidential pardon powers, as a volunteer via ABA & NACDL Committees.
There are others who know much more than I about these matters.
@AshaRangappa_ makes a good point tonight on CNN that Congress has an oversight interest in investigating executive branch obstruction of justice, which mitigates against executive privilege and it was waived anyway.
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