Law & the Courts

Constitutional Crisis As Absurdist Theater 

House Judiciary Committee chairman Jerrold Nadler (Joshua Roberts/Reuters)

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.

The Editors comprise the senior editorial staff of the National Review magazine and website.

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