I remember. Seven years ago Democrats had the opportunity to right the very wrongs they so sincerely decried in a House Judiciary Committee hearing this week. Not only did they fail to defend our Congressional subpoena power, they vociferously argued that doing so was inappropriate. I kid you not.
Back then, Obama administration Attorney General Eric Holder had refused to comply with a Congressional subpoena for documents in the Fast and Furious investigation. Republicans argued at the time that Democrats should stand with us in defending our Congressional subpoena power. They refused.
With a Republican president, now they're willing to fight this battle. But the precedent they themselves set, combined with the weakness of their case against Attorney General William Barr, is a recipe for failure.
In light of the histrionics this week in the hearing to hold Barr in contempt, a review of Democrats' previous arguments on this issue is instructive.
Chairman Jerry Nadler, D-N.Y., was among the House Democrats who actually walked off the House Floor in 2012 rather than defend Congressional authority by holding Holder in contempt. Only now does Nadler believe such a problem creates a "constitutional crisis." But in 2012, Nadler referred to the very same action as a "shameful, politically-motivated GOP vote."
Nadler now says the White House "stonewalling" Congress represents an attack on "the essence of our democracy" – as though stonewalling were some new phenomena. Where was Nadler's righteous indignation when the stonewalling came from a Democratic White House?
No one stonewalled Congress more thoroughly than Attorney General Holder, who abused executive privilege by arguing that documents upon which President Obama had never even been briefed qualified for protection under executive privilege. This was an unprecedented expansion of privilege. By contrast, Barr is facing a contempt charge for, in part, simply upholding the law requiring him to withhold Grand Jury materials.
Nadler is not alone in his 180-degree turn on this issue. House Rules Committee Chairman Jim McGovern, D-Mass., has also had a change of heart McGovern argued during Floor debate in 2012 that contempt resolutions were a waste of the American people's time. "This has been rushed to the Floor. The American people expect us to address the issues that matter most to them. Issues like jobs and the economy and education and healthcare. . . what troubles me most is under the Republican majority, everything has to be a fight."
Now, McGovern seems to feel differently. The stonewalling issue that was too insignificant to be worthy of consideration in 2012 is now a threat to the very institution of Congress. McGovern defended Speaker Pelosi's focus on the issue. “I know that Pelosi is someone who respects the institutions of our government and is horrified by what she’s seeing unfold,” McGovern said. Neither Pelosi nor McGovern were horrified by the Obama administration's arguably more expansive use of this tactic.
Rep. Donna Edwards, D-Md., referred to the 2012 contempt vote of Eric Holder as an attempt by Republicans "to simply play politics because you can't win any other way." Edwards has left Congress, but in a May 2, 2019 tweet regarding what she called Barr's "lies to Congress", Edwards wrote, "Calls for Trump resignation or impeachment. Crickets. Wait for an election that we may or may not win? We need the constitution to win, now." Where was this concern for the constitution in 2012? Edwards then defended the refusal to comply with a Congressional subpoena for documents.
Some Democrats went so far as to argue in 2012 that a contempt resolution was inappropriate. In the floor debate, Rep. Adam Schiff, D-Calif., argued forcefully, saying, "What we are doing today is simply a partisan abuse of the contempt power. What we do will cause no injury to the department but will cause great injury to this House. The Justice Department, after providing 8,000 documents and extensive testimony is now being required to turn over privileged materials, and like all administrations before it, it has reluctantly used executive privilege to respectfully refuse to provide materials it cannot provide." Could there be a more perfect description of Barr's position?
Rep. Hank Johnson, D-Ga., went even further, arguing in 2012 that Congress could not expect Holder to turn over materials "not discoverable" or that cannot be distributed outside the Justice Department under penalty of law. He went on to say of the contempt resolution, "This is a manufactured crisis. It has no legal substance whatsoever. This is just simply a cheap political stunt to bring disfavor upon the President of the United States. And I ask my colleagues not to let us sink to this level."
But sink to this level they have.
Let's end with the wise advice of Rep. G.K. Butterfield, D-N.C., during his 2012 floor speech. He warned Republicans about the danger of the contempt resolution. "My Republican friends, do not use your majority to engage in a political stunt," he advised.
"The integrity and legacy of this institution deserve better than that. If you want to discredit and defeat this president, you need to leave this floor and leave the C-SPAN cameras and go out and give it your best shot. This is not the place to do it. . . I encourage my colleagues to join me in refusing to vote for this gimmick and walk to the steps of the Capitol and explain the circumstances of this dark day."
When it came time to vote on the Barr resolution, Butterfield changed his tune, telling Spectrum News, "I expect Attorney General Barr to produce that report. If not, to suffer the consequences of failing to do so." What consequences? Butterfield vociferously advocated in 2012 against applying any consequences for failure to comply with Congressional subpoenas.
I believe Congress should, in fact, defend its subpoena power, but they need a winning case (Barr wins this case easily), and a principled backbone of consistency. America should not mistake this charade by the Democrats for a principled stand. Not when the principles shift with the political fortunes of the Democratic Party.