The Constitutional Crisis That Wasn’t

“We are now in a Constitutional crisis” — Jerry Nadler (D, NY).

So said House Judiciary Chairman Jerry Nadler after the committee proceeded to vote along strict party lines to hold Attorney General William Barr in contempt of Congress. Nadler’s stated rationale was that Barr failed to turn over the entirety of Robert Mueller’s report to Congress without any redactions. This failure, according to Nadler, is emblematic of the lawlessness of the Trump Administration. 

Jerry Nadler (D, NY)

We should also note that while the Judiciary Committee has voted to hold Barr in contempt, the matter still has to be taken up by the entire Congress, which we can expect to happen in relatively short order. 

Interestingly enough, Congressman Nadler didn’t seem to think there was a constitutional crisis the last time the Congress held a sitting AG in contempt of Congress. Perhaps that is because the AG at the time was none other than President Obama’s wingman, Eric Holder. That vote, taken in 2012, was 255 – 67, with 17 Democrats voting in support of a criminal contempt resolution, which authorized Republican leaders to seek criminal charges against Holder. A second contempt citation, this one civil, authorized the House Oversight and Government Reform Committee to sue the Justice Department to get documents related to the Fast and Furious scandal that was at issue. That resolution passed by 295 to 95, with 21 Democrats voting in favor of the measure. 

In the end, Justice Amy Berman Jackson declined to hold Mr. Holder in contempt, but ordered the Justice Department to turn over unprivileged documents to the House Committee. Something similar will probably wind up happening in this case. 

What is amazing about all this is that Congressman Nadler, despite all appearances to the contrary, is not a stupid man. He knows that this is not even close to a Constitutional crisis. Nor is the Trump Administration unique in its quest to expand the power of the Executive branch or in its disdain for Congress. There was, for instance, the Obama Administration’s routine rewriting of laws it didn’t like, only to be consistently rebuffed by the Courts. Not to mention the obvious lawlessness of Hillary Clinton and her e-mail caper, or the money laundering operation that was the Clinton Foundation. Or the Obama Administration setting Lois Lerner loose to use the IRS as a political tool to attack conservative advocacy organizations. Then there was the appalling behavior of Bill Clinton in the White House and the perjury that attended it. 

Of course we don’t want to leave out the criminal behavior of Richard Nixon and his Attorney General, John Mitchell. Nor do we want to ignore how Lyndon Johnson used the FBI to spy on his opponents, which, as seems increasingly obvious, is a habit that Obama was all too happy to resurrect.  And not to put too fine a point on it, the next time someone refers to Barr as Trump’s “handpicked” Attorney General, it might be worth tossing in a gentle reminder that all Attorneys General are “handpicked”. And that when Jack Kennedy picked his 35-year old younger brother to be Attorney General, he picked someone who was hardly disinterested in politics. Not to mention barely out of law school. 

If we take a look at the bigger picture without getting distracted by all the smoke on the battlefield, it seems fairly obvious that the last President who pointedly did not expand, nor seek to expand Executive power was Calvin Coolidge. Silent Cal, who famously said he would only speak if it improved the silence, was one of America’s better Presidents. Unlike most modern presidents he was not an egomaniac. Moreover he was perfectly content to do what he took an oath to do, namely to “…preserve, protect and defend the Constitution of the United States.” 

Not a bad idea, that. 

JFB


Barr Held in Contempt by House Judiciary, POLITICO

Holder Held in Contempt, POLITICO

Judge Declines to Hold Holder in Contempt, POLITICO

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Joe Benning