The US Attorney General perhaps didn’t perjure himself this week, at least not within the very limited scope of the statute, but he removed any shred of ambiguity about his role and purpose. In his testimony to a relatively friendly Senate panel yesterday, Barr demonstrated how law operates in a banana republic, leveraging the power we gave to our senior law enforcement bureau to protect a Kleptocrat. The Attorney General is now Donald Trump’s attorney. He’ll wreck your interests to protect his client.
Today Barr ignored a Congressional subpoena. Submitting a collection of yada-yada sentences expressing issues with the forum, he simply failed to show up before a hostile panel. He’ll likely be cited for contempt, but what happens then? Probably nothing.
Contempt of Congress used to matter. Like Congress itself, it doesn’t anymore. A decades-long descent into triviality fueled by tragi-comic Republican ghost hunts means no one takes the matter seriously. Barr won’t even be the first Attorney General cited for contempt. That distinction belongs to Obama’s AG, Eric Holder. We’re about to find out how weak our democratic institutions have become.
Here’s how this is supposed to work. Congress has a nearly unlimited power under the Constitution to subpoena evidence for its investigations. Congress also has the power to compel that testimony, but that power is wielded by the Department of Justice. In principle, the Congressional Sergeant at Arms has the power to arrest someone and bring them to testify. That was actually done in the olden’ days, but since the 19th century that position has evolved into more of a ceremonial role.
Now, when Congress votes to hold someone in contempt, that contempt citation is handed to the Assistant Attorney General for DC, who performs their usual role in evaluating a prosecution. Contempt is a federal crime, punishable by up to a year in prison and a $100,000 fine. In the modern era, no one has ever been convicted of Contempt of Congress. With the exception of a few random loons, everyone eventually complies with the subpoena, from Henry Kissinger to Janet Reno. That has changed recently.
The two people who came closest to jail for contempt were Rita Lavelle and Anne Gorsuch Burford. Yes, that Gorsuch, mother to one of Trump’s Supreme Court picks. As Reagan’s first pick to head the EPA, Gorsuch presided over a scam in which Superfund money was being channeled into districts held by Republican Congressman, and Republican-friendly companies were getting breaks on fines. Lavelle ended up taking the fall for Burford after a whistleblower emerged to reveal her perjury. Reagan, Burford and everyone else threw Lavelle to the dogs.
Both Burford and Lavelle were voted in contempt. Both were indicted by Reagan’s Justice Department. Burford settled and complied. Lavelle went to trial on the contempt charges (the only example I could find) and was acquitted. In a separate case she was convicted of perjury and served a few months in prison. She later went back to prison over a scam involving hazardous waste removal.
A Congressional subpoena used to carry some weight, but that was in the days when Congress commanded some respect. Between 1940 and 2012, only 30 people were cited for contempt of Congress. 23 of those citations were issued by the raving nutjobs running the 112th Congress in 2011-12.
As the burden and absurdity of Congressional investigations mounted under Republican leadership, people stopped taking any of it seriously. When the US Attorney General was cited for contempt of Congress in 2012 over failure to turn over documents in the Fast and Furious inquiry, it hardly made news outside the right wing bubble. The Asst. AG in DC declined to prosecute and an internal Inspector General report found no wrongdoing. Congressional subpoena power was effectively dead, discredited beyond recovery by Republicans.
If Congress issues a contempt citation to Barr, the Asst. AG in DC who will review it is Jesse K. Lieu. She’s a Federalist Society member appointed to her current position by Trump. She joined the Justice Department in 2002 after a distinguished career in the private sector. Interestingly, she withdrew her nomination to the #3 position at the Justice Department just a few months ago. Apparently Senate Republicans objected that she wasn’t conservative enough, without any explanation.
What will she do? If she decides to prosecute then she could be fired, a fate met by others who threatened to challenge Trump. We’ll see.
We’re waking up to the fact that much of our democracy has already been hollowed out by years of Republican damage. We simply lack the common institutions necessary to hold powerful people accountable. Thing is, this is a nightmare scenario for real conservatives, those who recognize the value of traditional institutions. It is a wide open opportunity for the left. They just don’t see it yet.
Rule of law, tradition and due process have been the biggest obstacles to leftist reforms in our system. Republicans, in a foolish effort to burn down that system to protect white supremacy, have gutted those controls and destroyed their legitimacy. What will happen now when a Democratic President decides to ignore Congress, disregard the Supreme Court or even defy local law enforcement to expand health care, pack the judiciary, curtail gun rights, or impose a new climate plan? Nothing. As long as they retain political support from voters, they’ll be able to whatever they want. Contempt of Congress, and of our broader public institutions, is now the nearest thing we have to a common political value, a single attitude that binds us all together. Conservatives who winked at this project to discredit our institutions will deeply regret their complicity.
The left is waking up to the gift they’ve been handed. In time, they will wield this new executive power in ways we will regret.