In a party-line 229-191 vote, House Democrats on Tuesday passed a civil enforcement resolution that Democrats say effectively holds Attorney General William Barr and former White House counsel Don McGahn in contempt of Congress -- just a day after a key Democrat-led committee postponed its own contempt vote and said the Justice Department was cooperating with its investigation.
The whiplash of legislative action appeared intended to mollify progressives but infuriated House Republicans, who said Democrats were violating committee rules and that federal law and executive privilege prevented Barr and McGahn from turning over all the requested documents. The ranking member of the House Judiciary Committee, Rep. Doug Collins, accused his colleagues of seeking a "re-do" of Special Counsel Robert Mueller's investigation for political gain.
The DOJ, for its part, pushed back on the vote. A senior DOJ official said it was not a "civil contempt vote," calling the terminology a "Democratic talking point."
President Trump did not invoke executive privilege to shield any aspects of the Mueller report, but matters related to ongoing grand jury proceedings have been redacted pursuant to federal law, even from members of Congress. Mueller, in a rare public appearance before reporters, remarked in May, "I certainly do not question the attorney general's good faith" in deciding to make the report "largely public."
The resolution does not use the word "contempt," and could be seen as part of Democrats' ongoing two-track effort to avoid embracing sensitive matters like impeachment or contempt, while keeping them on the table. Instead, the resolution empowers House Democrats to use the services of the House counsel to take their subpoena fight against Barr and McGahn to court, and also gives congressional committee chairs the ability to unilaterally "initiate" judicial proceedings to enforce future subpoenas in federal court.
A typical contempt citation would accomplish the same goals. The only restriction in the resolution is that committee chairmen must first obtain the sign-off of a small, Democrat-dominated group of House leaders before heading to court.
Ordinarily, Democrat-led committees would need to secure a vote of the full House before seeking to enforce subpoenas in court. By allowing committee chairs to act without a full House vote in the future, leaders could avoid tying up precious floor time — and also prevent Democrats from more conservative districts from taking multiple votes on contempt resolutions.
Many of those members have said they would prefer to be working on policy instead of investigating the president.
Last month, the House Judiciary Committee, led by Rep. Jerry Nadler, D-N.Y., voted to hold Barr in criminal contempt. But, on Monday, Nadler announced he had reached a deal with the Justice Department to access key documents related to potential obstruction of justice, and that he would pause efforts to have the full House vote on that measure.
A criminal contempt citation in theory would authorize the Justice Department to open a criminal prosecution -- an unlikely scenario that prompted Barr, last month, jokingly to ask House Speaker Nancy Pelosi, D-Calif., whether she had brought "handcuffs" to arrest him.
"When you go around the country, you don’t hear people saying they want to continue going down this rathole of witch hunts and impeachments," House Minority Whip Steve Scalise, R-La., told reporters. "They’re on this witch hunt, this search to fund something, as opposed to focusing on the problems of this country."
Collins, R-Ga., issued a blistering statement ahead of the vote early Tuesday.
"For over two years, Democratic politicians and media pundits repeated a fantastical intrigue-filled narrative premised on the hope Special Counsel Robert Mueller would reveal members of President Trump’s 2016 campaign colluded with Russians," Collins wrote, saying Mueller's report "crumbled" their hopes.
"Rather than move on to real issues facing the American people, however, House Democrats have decided they want their turn to play prosecutor and are clumsily attempting to re-do the Special Counsel’s investigation," Collins added.
The documents Democrats sought from McGahn, Collins said, were "protected by constitutional privileges and immunities," and were in the "custody and control of the White House, not McGahn, who is now a private citizen."
Accordingly, Collins concluded, "McGahn could not, and did not, comply with the subpoena."
A formal Barr contempt vote would be historic, but not unprecedented. In 2012, the GOP-controlled House voted to hold the attorney general at that time, Eric Holder, in both criminal and civil contempt for failing to comply with investigations into the Obama administration's failed gun-running sting operation, "Fast and Furious." Holder became the first-ever sitting Cabinet member to be held in contempt of Congress in that manner.
The House Oversight Committee, meanwhile, said it will prepare a separate contempt resolution for Barr and Commerce Secretary William Ross over documents and information related to the citizenship question in the 2020 census. That vote is expected Wednesday and relates to Democrats' concerns that the Trump administration included a citizenship question to deter illegal immigrants from filling out their census forms.
“President Trump declared to the entire country that he is fighting all the subpoenas—even when they are bipartisan and seek information on matters as critical as the Census," House Oversight Committee Chairman Elijah Cummings, D-Md., said in a statement. "The Trump Administration has demonstrated repeatedly that it is willing to disregard the Constitution, defy decades of clear precedent, and invent frivolous new arguments to delay and obstruct Congress’ oversight authority, and Attorney General Barr and Secretary Ross are complicit in this cover-up."
In response, the DOJ sent Cummings a letter detailing all of its ongoing efforts to comply with the committee's document requests, and slamming Cummings for not "seriously" working with the DOJ on the document production.
The DOJ said it had made "eight document submissions totaling more than 17,000 pages" and made available two high-level officials for interview. "The Department's production, moreover, remains ongoing," the letter noted.
Oversight Committee ranking member Jim Jordan, R-Ohio, accused Cummings of violating the panel's rules.
"Under the Rule 2(f) of the Committee's rules, you must provide 'every member of the Committee... with a memorandum at least three calendar days (excluding Saturdays, Sundays, and legal holidays...) before each meeting or hearing,'" Jordan wrote. "The memorandum for the business meeting scheduled for Wednesday, June 12 should have been distributed no later than Friday, June 7. It was not. I am unaware of any 'unusual circumstances' that would necessitate a business meeting without a timely memorandum. If you intend to proceed in considering the contempt resolution at the business meeting scheduled for June 12, you risk undermining the ability of the House of Representatives to enforce a finding of contempt."
Jordan added: "The record before the Committee does not support contempt of Congress at this time. Both Attorney General Barr and Secretary Ross have cooperated-and continue to cooperate-with your investigation. In fact, the Committee has received over 30,000 pages of documents from the Administration. The Committee's fact-finding is ongoing, and you have scheduled three transcribed interviews with witnesses in the upcoming weeks. If you were serious about getting to the facts on the Administration's decision to reinstitute a citizenship question on the 2020 Census, you should attempt to obtain the information from other sources before rushing to contempt of Congress."
Legal experts generally have concurred that under the 14th Amendment, the census constitutionally must count all people in the U.S., including illegal immigrants. Census figures, in turn, are used to calculate how many members of Congress each state is afforded. Democrats, by many accounts, would lose representation in Congress if illegal immigrants were undercounted.
The Supreme Court is currently weighing the legality of the Trump administration's decision to include the census question, following a lawsuit by 18 states against the addition. Justice Ruth Bader Ginsburg, speaking to a meeting of lawyers and judges earlier this week, remarked that "the event of greatest consequence for the current term, and perhaps for many terms ahead" was the resignation of Justice Anthony Kennedy, who was replaced by Brett Kavanaugh.
That comment prompted speculation that the high court would uphold the census question by a 5-4 margin.
The citizenship question was last asked on the census in 1950, but beginning in 1970, a citizenship question was asked in a long-form questionnaire sent to a relatively small number of households, alongside the main census. In 2010, there was no long-form questionnaire.
"There is no credible argument to be made that asking about citizenship subverts the Constitution and federal law," Chapman University law professor and constitutional law expert John Eastman told Fox News. "The recent move is simply to restore what had long been the case."
Fox News' Jake Gibson, Brooke Singman and Chad Pergram contributed to this report.