In a move that should come as no surprise, the Department of Justice will not charge its leader, Attorney General William Barr, for defying a Congressional subpoena.
The House voted to hold Barr and Commerce Secretary Wilbur Ross in criminal contempt due to their failure to respond to subpoenas regarding the effort to add a citizenship question to the 2020 Census that was ultimately blocked by the Supreme Court. Barr also apparently encouraged the President to outright defy that Supreme Court decision.
But it was unlikely that any U.S. Attorney was going to file charges against the head of their own Justice Department. Now, the Department of Justice has said no charges will be filed in the criminal contempt case against Barr and Ross. But the DOJ set a dangerous precedent in so doing.
Instead of simply declining to prosecute Barr and Ross, Deputy Attorney General Jeffrey Rosen went even further, issuing a broad statement that defying a Congressional subpoena did not constitute a crime, making the criminal contempt charge baseless. While it serves in this instance to exonerate two Cabinet members, the wide-ranging implication could irreparably damage Congress.
Even when limiting Rosen’s decision to what happened in the case at hand and Trump’s last-minute claim of executive privilege, that privilege was invoked at the request of departments facing contempt citations for not wanting to hand over documents. This could cripple Congress’ Constitutional role to provide oversight over the Executive Branch by allowing any agency to potentially get presidential cover to shield them from the consequences of their actions. Other attempts to oversee the Trump administration, potential impeachment inquiries, and attempts to make Trump’s tax returns public were effectively declawed by Rosen’s decision in this case.
It’s certain Republicans will desperately want the power to subpoena government officials if the years-long House investigation into the attack on the U.S. Consulate in Benghazi, Libya is any indication.
And of course, there’s the broader risk that the Rosen decision emboldens other actors — from businesses to political action groups (PACs) — to refuse Congressional subpoenas, seeing that it can be read that Rosen has declared contempt of Congress a non-criminal offense writ large.
But for now, the one thing we know for certain is that William Barr’s own Justice Department will not seek to indict or prosecute him as he continues to act more as the president’s lawyer, and less as America’s lawyer.
(Featured image: Fox News/Fair Use)
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.