DOJ to Nadler: Threaten Barr With Impeachment, You Get Nothing…
Smart move by DOJ lawyers. The letter below informs Judiciary Chairman Jerry Nadler the previous report content was provided without assertion of executive privilege; however, if Nadler follows-through with impeachment plan, executive privilege is now enforced and the totality of the report is withdrawn from congress.
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U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
May 7, 2019
The Honorable Jerrold Nadler
Chairman
Committee on the Judiciary
United States House of Representatives
Washington, D.C. 20515
Dear Chairman Nadler:
As you know, the Attorney General has repeatedly sought to accomodate the interests of the House Committee on the Judiciary in the investigation conducted by Special Counsel Robert S. Mueller, III. On April 18, 2019, the Attorney General voluntarily disclosed to Congress the Special Counsel’s report, which was intended to be “confidential” under the applicable regulations, with as few redactions as possible, consistent with the law and long-established confidentiality interests of the Executive Branch. He also made available to you and other congressional leaders a minimally redacted version of the report that excluded only
grand-jury information, which could not lawfully be shared with Congress. In response, you refused even to review the minimally redacted report, and you immediately served a subpoena, dated April 18, 2019, demanding production of the fully unredacted report and the Special Counsel’s entire investigative files, which consist of millions of pages of classified and unclassified documents, bearing upon more than two dozen criminal cases and investigations, many of which are ongoing.
Since then, the Department of Justice has offered further accommodations to the Committee. In particular, the Department offered to expand the number of staff members who may review the minimally redacted report; to allow Members of Congress who have reviewed the minimally redacted report to discuss the material freely among themselves; and to allow Members to take and retain their notes following their review. We expressed our hope that these further accommodations would prompt you and your colleagues actually to review the minimally redacted report, which would allow the parties to engage in meaningful discussions regarding
possible further accommodations of the Committee’s additional expansive requests. We further proposed a framework for those discussions, and made clear that we were open to conducting them on an expedited basis.
Unfortunately, the Committee has responded to our accommodation efforts by escalating its unreasonable demands and scheduling a committee vote to recommend that the Attorney General be held in contempt of Congress. In particular, the Committee has demanded that the Department authorize review of the minimally redacted report by all 41 members of the Committee, as well as all members of the House Permanent Select Committee on Intelligence, and additional staff members. As we have explained, however, doing so would force the Department to risk violating court orders and rules in multiple ongoing prosecutions, as well as risk the disclosure of information that could compromise ongoing investigations. In addition, you have demanded that the Department join in a request that a court grant the Committee access to grand-jury material protected by Federal Rule of Criminal Procedure 6(r), even though we have explained that such a request would force the Department to ignore existing law. Such unreasonable demands, together with the Committee’s precipitous threat to hold the Attorney General in contempt, are a transparent attempt to short-circuit the constitutionally mandated accommodation process and provoke an unnecessary conflict between our respective branches of government. They are also counterproductive. They will not further the Committee’s interests in obtaining the requested information.
In the face of the Committee’s threatened contempt vote, the Attorney General will be compelled to request that the President invoke executive privilege with respect to the materials subject to the subpoena. I hereby request that the Committee hold the subpoena in abeyance and delay any vote on whether to recommend a citation of contempt for noncompliance with the subpoena, pending the President’s determination of this question.
This request is consistent with long-standing policy of the Executive Branch about congressional requests for information implicating executive privilege. See President Ronald Reagan, Memorandum for the Heads of Executive Departments and Agencies, Procedures Governing Responses to Congressional Requests for Information 2 (Nov. 4, 1982) (directing executive agencies to “request the Congressional body to hold its request for the information in abeyance” in order to “protect the privilege pending a Presidential decision”). Regrettably, the Committee has made this request necessary by threatening to pretermit the constitutionally mandated accommodation process between the branches and to hold a vote on contempt tomorrow morning.
This request is not itself an assertion of executive privilege. If the Committee decides to proceed in spite of this request, however, the Attorney General will advise the President to make a protective assertion of executive privilege over the subpoenaed material, which undoubtedly includes material covered by executive privilege. President Clinton, acting on the advice of Attorney General Janet Reno, made such a protective assertion of privilege in similar circumstances. See Protective Assertion of Executive Privilege Regarding White House Counsel’s Office Documents, 20 Op. O.L.C. 1(1996). We remain open to further discussions with the Committee, and we hope that the Committee does not make it necessary for the President to take that step tomorrow.
Sincerely,
Stephen E. Boyd
Assistant Attorney General
cc: The Honorable Doug Collins
Ranking Member
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The only thing AG Barr was statutorily required to provide was the four-page summary letter he already presented. Asking President Trump to throw the executive privilege blanket over the full work product effectively shields it from congressional review; AND simultaneously blocks congress from proceeding with any impeachment action.
The assertion of executive privilege effectively removes any lack of production action (ie. the impeachment threat) by Chairman Jerry Nadler.
Essentially AG Barr et al is going old school with classic separation of power. POTUS Trump built a bridge from executive to legislative branch with voluntary production; however, if Nadler wants to be a resistance member then the executive branch will pull back and the customary three-branch separation of power rules will be the standard form of engagement.
Smart play.
In terms of chess: “Check.”
This is basically the Democrats trying to see what cards Trump is holding. They want access to information the DOJ cannot legally give them. They have no legal standing.
-SB
“He also made available to you and other congressional leaders a minimally redacted version of the report that excluded only
grand-jury information, which could not lawfully be shared with Congress.”
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I make no claims to being super smart. I have issues with reading comprehension sometimes, but I read and understood this letter from Stephen Boyd to Nadddler (extra d’s on purpose). I happened to be outside weeding, came in and hadn’t changed the channel from Fox, so I got caught in Shepland and happened to catch Judge N on there and he did NOT understand why they couldn’t get the redacted report??? Basically the judge seemed to side with the demonrats rather than the law and Barr???? I wondered what part of Boyd’s letter he didn’t understand.
Petey