The U.S. House Judiciary Committee vote Wednesday afternoon to hold U.S. Attorney General William Barr in contempt was quickly followed by an announcement that Congress and Main Justice had reached a settlement in a subpoena dustup involving Eric Holder, the first sitting attorney general held in contempt of Congress.
The former Obama-era attorney general was held in contempt in 2012 by the then-Republican held House after refusing to comply with a demand for records related to the botched gun sting called Operation Fast and Furious. That case got bogged down in the federal trial and appellate courts, for seven years, and a settlement was filed just hours after the House Judiciary Committee voted along party lines to hold Barr in contempt.
Barr has refused to provide an unredacted version of special counsel Robert Mueller III’s report. The committee vote came the same day President Donald Trump asserted executive privilege over all records related to the special counsel’s report.
The case against Holder received widespread attention this week as House Democrats began laying the groundwork for a potential lawsuit against Barr. With history as a guide, the clash involving Holder suggested a long, complicated legal slog for House Democrats in Washington’s federal trial court, home to many subpoena fights across presidential administrations.
The judiciary committee’s contempt vote now heads to the full House floor, and the House could be expected in the coming weeks to take Barr to court in Washington to force compliance with the subpoena.
In the Holder matter, House Republicans and the Trump administration had attempted to negotiate a settlement last year that included asking the presiding trial judge to void two rulings issued by U.S. District Judge Amy Berman Jackson of the District of Columbia.
Jackson refused the invitation. Though her opinions won’t bind any other judges on the trial court, they remain the most recent decisions that other judges can look to for guidance as any contempt case against Barr plays out.
“The fact that this unique dispute involving the production of a specific set of records—which the court found had already been disclosed to the public in any event—has been resolved does not diminish the importance of the fundamental legal questions that arose along the way,” Jackson wrote in October 2018. “And the parties have not articulated any reason why the court’s opinions on those broad subjects—which were shaped by its consideration of the thorough briefing and skilled argument by both sides—should simply evaporate.”
“Judges find other judges’ opinions to be helpful when they are considering difficult questions, even if they ultimately disagree with them, and that is one reason why these rulings should remain on the books,” Jackson added.
Lawyers for the Democrat-controlled House and the Justice Department said last month in a filing in the case against Holder, now a Covington & Burling partner, that both sides have “resumed settlement negotiations and have made substantial progress towards a negotiated solution.” The lawyers had been filing status reports every 30 days, and Wednesday’s report announced that the parties had resolved the dispute April 10.
The House and Justice Department stated in Wednesday’s court filing that both sides continue to disagree with two of Jackson’s rulings, which addressed “deliberative process privilege” and the House’s legal standing to sue in the first place. The Justice Department said in the settlement papers that it disputes Jackson’s conclusion that “the committee had standing and a cause of action to bring this suit.”
Todd Tatelman, deputy House general counsel, signed for the House, and the Justice Department’s Jody Hunt, head of the Civil Division, signed for the executive branch. The lawyers said in the settlement that both sides “waive any right to argue that the judgment of the district court or any of the district court’s orders or opinions in this case have any preclusive effect in any other litigation.
If the House sues to enforce the judiciary committee’s subpoena for Mueller’s unredacted report, the fight would likely center around redactions of grand jury material, in addition to possible executive privilege claims.
The Justice Department will likely first seek to dismiss the case by arguing the House doesn’t have standing to sue, said Kerry Kircher, a former House general counsel. Kircher pointed to three recent instances where federal judges in Washington have agreed to let lawmakers sue the executive branch.
One, he said, was Jackson’s ruling allowing the House lawsuit against Holder to go forward. Another was a 2008 decision from U.S. District Judge John Bates, also in D.C., who said Congress had standing to sue former White House counsel Harriet Miers, over a similar bid to force compliance with a congressional subpoena.
He also pointed to a third ruling, written by U.S. District Judge Rosemary Collyer in 2015, that allowed Congress to sue the Obama administration over cost-sharing reduction payments to health insurers.
Justice Department lawyers contend Barr cannot comply with the judiciary committee’s subpoena “in its current form without violating the law, court rules, and court orders, and without threatening the independence of the Department of Justice’s prosecutorial functions.”
House Judiciary leaders, including Chairman Jerrold Nadler, D-New York, said late Tuesday that Barr’s defiance “represents a clear escalation in the Trump administration’s blanket defiance of Congress’ constitutionally mandated duties.”
Read the settlement agreement: