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A Constitutional Crisis? House Panel Holds AG Barr in Contempt as Trump Claims Executive Privilege

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The House Judiciary Committee has voted to hold Attorney General William Barr in contempt of Congress over his refusal to turn over the unredacted Mueller report and the underlying evidence to lawmakers. Meanwhile, House Intelligence Committee Chairman Adam Schiff has issued a subpoena to the Justice Department for the unredacted report. This all came after the White House invoked executive privilege to prevent the full report’s release to Congress and to bar former White House counsel Don McGahn from providing documents to Congress related to the Mueller probe. We speak with Ian Millhiser, a columnist for ThinkProgress whose recent piece is headlined “Trump’s claim that the Mueller report is protected by executive privilege is hot garbage.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, “Democracynow.org”:https://www.democracynow.org, The War and Peace Report. I’m Amy Goodman.

NERMEEN SHAIKH: And I’m Nermeen Shaikh. Welcome to our listeners and viewers from around the country and around the world. We begin today’s show on Capitol Hill where the House Judiciary Committee has voted to hold Attorney General William Barr in contempt of Congress over his refusal to turn over the unredacted Mueller report and the underlying evidence to lawmakers. Meanwhile, House Intelligence Committee Chairman Adam Schiff has issued a subpoena to the Justice Department for the unredacted report. This all came after the White House invoked executive privilege to prevent the full report’s release to Congress and to bar former White House Counsel Donald McGahn from providing documents to Congress related to the Mueller probe. House Judiciary Committee Chair Jerrold Nadler spoke to reporters after the contempt vote.

REP. JERROLD NADLER: This was a very grave and momentous step that we were forced to take today to move a contempt citation against the attorney general of the United States. We did not relish doing this, but we have no choice. Attorney General Barr, having proved himself to be the personal attorney to President Trump rather than the attorney general of the United States, by misleading the public as to the contents of the Mueller report twice, by not being truthful with Congress, has shown himself to be the personal attorney of the United States rather than the attorney general. We’ve talked for a long time about approaching a constitutional crisis. We are now in it. We are now in a constitutional crisis.

AMY GOODMAN: The House committee vote to hold Barr in contempt was 24 to 16 along party lines and will now go before the full House. The Justice Department accused Democrats of engaging in inappropriate political theatrics. Republican lawmakers, including Doug Collins of Georgia, responded to Nader’s claim of a constitutional crisis.

REP. DOUG COLLINS: I heard the chairman just a moment ago say we’re in a constitutional crisis. The constitutional crisis is a committee that is asking from the attorney general things that they—he cannot give. The constitutional crisis is a committee asking to not only write the law, but enforce the law.

AMY GOODMAN: We go right now to Ian Millhiser, the columnist for ThinkProgress. His recent piece is headlined, Trump’s claim that the Mueller report is protected by executive privilege is hot garbage. Ian, talk about the significance of the House Judiciary Committee vote and it going to the full House, holding Barr in contempt.

IAN MILLHISER: Sure. I think that the contempt vote is less important than what is going to come after the contempt vote. Congress in theory could claim that now that Barr is in contempt, they can send the sergeant of arms to round him up and arrest him. But the attorney general has got an entire armed law enforcement apparatus behind him, so I don’t think they want a shootout between the sergeant of arms and the U.S. marshals. So realistically, this is going to be resolved in court. I think that Trump’s claims of executive privilege here are exceedingly weak, but the question is, A, whether we have courts that are not so partisan that they will actually follow the law and B, whether this gets dragged out for so long that it doesn’t really matter what the courts wind up saying.

NERMEEN SHAIKH: Ian, could you explain exactly what it means to invoke executive privilege? You have said that there is no one single concept of executive privilege.

IAN MILLHISER: Right. There are two distinct concepts of executive privilege. The stronger form of privilege applies when there’s a communication directly with the president of the United States, or in some cases with the president’s top advisers. That is not the case here. I mean, Robert Mueller was adverse to the president. He was investigating the president.

There is a weaker privilege that deals with internal government communications that discuss how they come to decisions about policy or other government actions. That privilege probably applies here, but it’s exceedingly weak. It doesn’t apply to documents that just contain information and don’t contain like deliberation over specific policies. And it also doesn’t apply to potential government misconduct. And the Mueller report is one big investigation into potential criminal misconduct by the president of the United States. So I think it would be very, very strange if the courts were to say that the privilege applies in this case. The problem is, we have the courts we have, we have a very partisan Supreme Court and so there’s no guarantee that they’re going to follow existing law.

AMY GOODMAN: So at the same time that you have the House Judiciary Committee to hold William Barr in contempt–that has to go to the full House—you have the Republican-led Senate Intelligence Committee, led by Senator Burr, subpoenaing, for the first time, Donald Trump, Jr. Can you explain what that is all about and the significance of this, the first time Donald Trump’s children have been subpoenaed?

IAN MILLHISER: Sure. So we know less about that than we know about some of the other things. I think what we do know is that Donnie Trump had claimed that he was not very involved at all with plans to build a Trump Tower Moscow, plans that eventually fell apart. But there was apparently active discussions about building a Trump Tower in Moscow during the 2016 race. And of course, given Russia’s interest in electing Donald Trump, any connection to Russia is potentially very disturbing.

Don Jr. claimed that he didn’t know very much about that at all when he testified in front of the Senate Judiciary Committee. Michael Cohen, Trump’s former lawyer, has since said that that is not true and that Donnie knew a great deal about this. So at the very least, there is the potential here for a perjury investigation, because it’s possible that Donnie did not tell the truth to the Senate Judiciary Committee. But I don’t think we know more yet about what they intend to probe or what might be revealed in this when Donnie eventually testifies.

NERMEEN SHAIKH: Back to the House vote and this question of executive privilege, how does the current situation compare to what happened when President Obama asserted executive privilege in 2012 to block the release of documents related to a secretive U.S. government gun-running sting operation called Fast and Furious? The House voted at the time 255 to 67 to hold Attorney General Eric Holder in contempt of Congress. Four years later, a district court judge ruled against Obama’s assertion of executive privilege. Ian Millhiser, your account of this? Your response?

IAN MILLHISER: So I think factually there are a lot of distinctions between those two cases. The case involving the Fast and Furious investigation turned out to be a really easy court case, and the reason it was an easy court case is that the Obama administration had already mostly complied with those subpoenas. Attorney General Holder had testified multiple times. They had released publicly an Inspector General’s report that quoted liberally from some of the documents that the House was seeking. And so eventually, a federal judge said, “Look, you have basically already complied with these subpoenas, so there is no good reason for you to not fully comply because there’s nothing left for you really to protect.”

So on the one hand, that was a fairly easy case. The other thing to know about that easy case is, like you said, it took about four years for the federal judge to get around to saying that. And so if it took four years in a really easy case like that one, one thing that I worry about with this fight over the Trump subpoenas is that the courts could potentially string this along for very long time.

AMY GOODMAN: We’re talking to Ian Millhiser of ThinkProgress. Deb Haaland now joins us, the Democratic congresswoman from New Mexico’s 1st Congressional District. Along with Congressmember David, she is one of the first Native American women elected to Congress. So, you will be voting when this comes to the House floor, Congressmember Haaland. How will you vote and how significant is this? Do you see this as a constitutional crisis? And do you see it leading to calls for impeachment?

REP. DEB HAALAND: It is an absolute constitutional crisis, and it has been since the president got sworn in. He has consistently—it is getting worse and worse every day. And of course, his comments yesterday at the rally in Florida are just appalling. His racism. All of the other things that give rise to all of this—it is a constitutional crisis. Look, I know that the committees need to be able to do their jobs. It is our job to do oversight on this government. And so once we are able to get the information that we need, that the American people deserve to know, yes, I will happily make my decision. So we just need to get to that place.

AMY GOODMAN: Deb Haaland, we’re going to break and then come back to our discussion and go further to talk with you about a number of issues. But on this issue of impeachment, if you’re talking about him being in contempt of Congress—Barr—if you’re talking about President Trump exerting executive privilege, are you headed in that direction?

REP. DEB HAALAND: I’m going to wait and see. I feel that we need to get the information that we need to get, right? I can’t say right off the bat that I want to vote to impeach. I want to wait and see all of the information that we deserve to get, and I will happily make my decision then.

AMY GOODMAN: Because you would be defying leadership. You have this divide in the Democratic Party right now with House Speaker Nancy Pelosi saying no to impeachment, saying that’s exactly what Donald Trump wants, that he is pushing Democrats to get enmired in this, and the American people feeling like when are they going to be served rather than having these internecine fights.

REP. DEB HAALAND: Thank you for raising that issue. Because right now, yes, we have oversight of the president, but we also came to Congress to do a job for the American people. And that’s exactly what I am doing. They don’t expect us to just sit on our hands and wait to make changes, wait to legislate all of the things that we know need to happen. With respect to giving workers a fair shot at success, students a fair shot at a quality public education—all of those things—the environment that can’t wait—and you mentioned that in the news that started out your show. We have a climate crisis on hand right now as well. So we can’t just pour every single bit of attention into the president. We need to move toward doing so much more for the American people and so we need to make sure that we are paying attention to those things as well.

NERMEEN SHAIKH: Representative Deb Haaland, in a moment we will ask about yesterday’s Uber and Lyft strike. But first, I want to turn to your efforts to protect the Chaco Canyon in the desert of northwestern New Mexico. The canyon is a World Heritage Site. Last month you co-introduced the Chaco Cultural Heritage Area Protection Act to protect the area from future leasing and development of minerals. Could you talk about the threats to Chaco Canyon and why the site is so important?

REP. DEB HAALAND: Yes, absolutely. I mean, look, it’s my ancestral homeland. It’s the ancestral homeland of the Pueblo people, as are other areas in the Southwest that deserve to be protected. It is a site that is a living landscape. It is not ruins. It is not something in the past that we shouldn’t care about. Right now I know there was a court decision that essentially stated that we need to—that the review was not done properly. So that is a small victory. What we want to do is have a permanent victory. We want a permanent end to fracking and drilling for a 10-mile radius around Chaco Canyon. And that is what I will continue to fight for.

AMY GOODMAN: We’re going to break and then come back to our discussion with you, Democratic Congressmember Deb Haaland, about the massive Uber and Lyft strike that took place across the world as Uber is about to go public. This is Democracy Now! Deb Haaland, Democratic congresswoman from New Mexico’s 1st Congressional District, one of the first two Native American congresswomen ever elected. Stay with us.

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The Gig Is Up: Rep. Deb Haaland Introduces Bill to Make Uber & Lyft Pay Their Fair Share of Taxes

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