National Review Online
Thursday, May 09, 2019
Jerry Nadler has declared a constitutional crisis.
The proximate cause is a couple of redacted lines,
including one footnote, in a 400-page report. Let’s be glad for the sake of the
republic that an entire page wasn’t withheld.
To review the plot: Robert Mueller conducted what was in
effect an impeachment inquiry from within the executive branch for two years.
In defiance of the spirit of the special-counsel regulations, he wrote a long,
detailed narrative account of what his investigation found, even though he
didn’t accuse the president of a crime (he did, however, “not exonerate” the president
on obstruction, a bastard concept hitherto unknown to American law).
Nothing in the regulations required Attorney General Bill
Barr to release any of the report, let alone release it in its entirety. He did
anyway with minimal, entirely defensible redactions that the DOJ worked through
with Mueller. He then testified for hours in public before a Senate committee
about his handling of the report, while declining to appear for more voluntary
testimony before a House committee the next day over a process issue (the
committee wanted a counsel to question Barr; the attorney general objected,
likely because he didn’t like the optics).
Collectively, then, and often working at cross-purposes,
the Trump administration has done Congress an enormous favor the last two
years. It appointed a special counsel; not only let him finish his work, but
cooperated with him (despite Trump’s ineffectual scheming against the
investigation); didn’t object to his writing a narrative for public and
especially congressional consumption; and with only a brief delay handed the
full report, signed, sealed, and delivered, over to Congress to potentially to
use as a roadmap for impeachment. (And, oh yeah, the report has been published
as a book and is being sold on Amazon.) Most of Jerry Nadler’s work has been
done for him.
For the New York Democrat to turn around and have his
committee vote to hold Bill Barr in contempt is truly bizarre. Barr’s alleged
offense is the redactions. But he has made an almost entirely un-redacted report
available to top Democrats to review. They have refused to do so, boycotting
the further information that they say they so desperately need.
The redactions that Barr can’t undo relate to grand-jury
material. These are extremely minor in the obstruction volume — now the most
politically relevant part of the report — amounting to a few lines. The notion
that they would change anything is absurd, and regardless, the rules written by
Congress forbid their release to Congress (something Congress might have
considered prior to the onset of this purported crisis).
Nadler also wants the underlying evidence from the
Mueller report. This is a more plausible-sounding demand, although it is highly
unlikely that Mueller and his team left any damaging facts out of the report.
Also, some of this material, especially the testimony and notes of the former
White House counsel Don McGahn, is highly sensitive and a natural for a claim
of executive privilege by the White House, which, for now, is claiming
privilege over everything.
Barr is clearly being targeted so Democrats can make a
show of punishing someone in the administration, without taking the much more
politically perilous step of impeaching the president. Although her statements
have been a bit all over the map lately, Speaker Nancy Pelosi still must
realize that impeachment would likely be a political mistake. But the more
Nadler and others inflate the current faux crisis, the greater the likelihood
that Democrats crab-walk their way to the impeachment proceedings they may
think they are forestalling by scapegoating Bill Barr.
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