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Mon Jun 10, 2019, 04:13 PM

What Democrats should learn from the Justice Department's retreat

By Jennifer Rubin
Opinion writer
June 10 at 2:21 PM


Former Justice Department spokesman Matthew Miller tells me that “this is a pretty good outcome for Nadler.” He adds, “It’s also an admission by DOJ that precedent was clearly on the committee’s side and a court would have likely determined that.” The Justice Department’s move should tell Democrats several things.

First, it proves that the department and the White House are operating from a position of weakness. They have recently lost two battles in court to prevent the House from obtaining accounting and other financial records. Rather than face criminal contempt, Barr decided to give way here, as well. Even without declaring impeachment hearings, the House has wide latitude to force President Trump and his associates (past and present) to provide both evidence and testimony. The president will whine and his team will bluff, but persistence will pay off for the House investigators.

Second, this should encourage the House to demand McGahn’s testimony and to seek contempt proceedings against him and other witnesses (e.g., former White House communications director Hope Hicks) for noncompliance. It takes effort, but as we saw with those two district court decisions, a remedy can come quickly.

Third, strong supporters of impeachment have put out a false narrative that casts the House as relatively helpless. Far from it. The House can get relief in the courts. Moreover, it seems Barr thinks that being held in contempt of Congress is enough of a threat to pry loose at least some evidence. “At least at first glance, this is a very promising development. It strongly suggests that even Bill Bar has his limits in terms of facing down a threat of being held in contempt by the House of Representatives,” says constitutional scholar Laurence H. Tribe. “This is incremental movement, and the pace is glacial, but the glass, though far from half full, no longer seems entirely empty.”

Fourth, the House Intelligence and Government Oversight committees should follow the Judiciary Committee’s playbook. While national security may be a reason for closed-door hearings, this is no excuse for failure to appear and/or produce any materials. This includes information relating to Trump campaign interactions with WikiLeaks. While Mueller wrote that there was not sufficient evidence of a criminal conspiracy between Trump and Russian figures, he said nothing about a plot involving Trump associates and the Russian cut-out WikiLeaks.

In short, the promise of more materials and the likelihood of forcing reluctant witnesses to testify should strengthen Speaker Nancy Pelosi’s (D-Calif.) hand in holding to her step-by-step approach.

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