Congress

Democrats’ next move unclear after approving subpoena lawsuits

Resolution is House’s broadest step so far in response to Trump’s ‘oppose-all-the-subpoenas’ strategy

Rep. Jamie Raskin, D-Md., second from left, says the resolution approved Tuesday, which gives committees the authority to take Trump administration officials to court quickly, had a broader purpose than just getting to court to get documents related to the Mueller probe. (Tom Williams/CQ Roll Call file photo)

Updated 7:13 p.m. | House Democrats voted Tuesday to bolster their oversight power by giving committees the authority to take Trump administration officials to court quickly, but it did little to settle broader questions in a caucus that is trying to balance competing political and legal strategies ahead of the 2020 elections.

The resolution becomes the House’s broadest step in response to President Donald Trump’s “oppose-all-the-subpoenas” strategy, because it allows the Democrats to skip the floor process to enforce committee subpoenas through the federal courts.

“You can either work with us and comply with subpoenas, or we’ll see you in court,” House Rules Chairman Jim McGovern said after the vote at a press conference with six Democratic committee chairmen.

[Democrats learning their subpoenas are only as powerful as Trump allows]

Tuesday’s measure specifically authorizes lawsuits to enforce House Judiciary subpoenas seeking the full special counsel report from Attorney General William Barr and testimony from former White House counsel Don McGahn. It also allows the committee to file a lawsuit seeking the release of grand jury information from the special counsel investigation, among other provisions.

The pure party-line approval vote, 229-191, shows Democrats have stayed unified through all of the oversight decisions they’ve made. But the questions they faced all day outside the chamber highlighted how they have failed to speak with a unified voice about what comes next.

‘Not even close’

More than 60 members, or a quarter of the Democratic Caucus, have publicly expressed support for beginning impeachment proceedings. Speaker Nancy Pelosi again faced questions about it onstage Tuesday at the Peter G. Peterson Foundation’s 2019 Fiscal Summit.

The California Democrat downplayed the significance of that number, saying it is “not even close in our caucus” as far as a majority wanting to pursue impeachment. She also reiterated that she thinks impeachment is “divisive.”

House Judiciary Chairman Jerrold Nadler declined to rule out an impeachment inquiry as an option Tuesday after the vote. “All options are on the table,” the New York Democrat said at the press conference.

Standing next to him around the podium were two chairs who have said they support starting such an inquiry: McGovern and Financial Services Chairwoman Maxine Waters.

House Majority Leader Steny H. Hoyer pushed back against questions that there are divisions within the caucus on next steps, telling reporters that “there are differences of opinion but not division.”

The Maryland lawmaker said Democrats were pursuing the information that Congress and the American people need to make determinations, but he did seem to acknowledge that Democrats haven’t planned out all of what comes next.

“We will make decisions based upon the information that we get,” Hoyer said.

Hoyer said some committee chairmen would like to move to impeachment. “But very frankly, I’m not sure that any of us around this table can explain exactly what the difference would be, except in terms of legal ramifications in terms of getting some information,” he said.

[Fines? Jail time? Democrats leave all options on the table for enforcing subpoenas]

When it comes to getting information, the threat of a floor vote to hold Barr in contempt of Congress helped lead to an agreement for House Judiciary members to access some documents from the special counsel investigation.

For example, Nadler announced Monday he had agreed to not pursue criminal contempt of Barr and to hold off on civil action against him as long as the Justice Department continues to cooperate with the committees’ requests for documents.

Some confusion

But committees appear to be on crisscrossing legal paths. Nadler’s agreement comes as the House Oversight and Reform Committee set a vote Wednesday to hold Barr and Commerce Secretary Wilbur Ross in contempt of Congress for not complying with a subpoena related to a congressional probe into the Trump administration’s plan to add a citizenship question to the 2020 census.

That Oversight Committee resolution includes language that would refer the contempt resolution to the U.S. attorney in Washington for possible criminal charges, as well as authorize the pursuit of a lawsuit.

And the decision not to pursue a contempt resolution on the floor Tuesday against Barr led to some messaging confusion among Democrats. Hoyer and Pelosi insisted the action was still a contempt vote, with the former saying the civil lawsuits would be “more productive” than a criminal contempt referral to the U.S. attorney.

Other Democrats conceded it was not a contempt vote, and that threat of a contempt vote remained an option to make sure the Justice Department upholds its side of the agreement.

“We are willing to try to work with the administration,” Texas Rep. Sheila Jackson Lee, a House Judiciary member, said Tuesday. “But we’re not willing to have a jelly spine.”

Technically, if the House filed a lawsuit, and a judge ordered the DOJ to comply with the congressional subpoena, and the department did not comply, that would be a contempt of court — but not contempt of Congress.

House Judiciary member Jamie Raskin said the resolution approved Tuesday had a broader purpose than just getting to court to get documents related to the Mueller probe.

“We’re trying to develop a categorical approach to the whole thing, and rather than find each recalcitrant executive branch official in contempt and go through a process, empower the committees to do it on their own,” the Maryland Democrat said.

Raskin, who has been outspoken about his support for starting an impeachment inquiry, said the House is in a tug of war about enforcing its subpoenas. But the point, he said, is to vindicate the rule of law, “and we believe the rule of law has already been violated multiple times by the president.”

What Democrats do agree on is that they’ve got the upper hand in their tussle with the administration.

“We are winning in terms of our litigation strategy, with multiple court decisions concluding that we have a right to receive documentation and hear from witnesses,” Democratic Caucus Chairman Hakeem Jeffries said Monday.

“We are winning in terms of our strategy as it relates to holding the Department of Justice accountable, including with the contempt citation that the Department of Justice and so-called attorney general clearly are concerned about, and that’s why we’ve arrived at an 11th-hour accommodation,” the New York Democrat added.

Republicans voted against Tuesday’s resolution, arguing it was an “unprecedented” move by Democrats to jump to legal action without exhausting other remedies for compliance with their oversight requests.

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