Editor’s Note: In this weekly column “Cross-exam,” Elie Honig, a former federal and state prosecutor and CNN legal analyst, gives his take on the latest legal news and answers questions from readers. Post your questions below. The views expressed in this commentary are his own. View more opinion articles on CNN. Watch Honig answer reader questions on “CNN Newsroom” at 5:40 p.m. ET Sundays.
Attorney General William Barr’s decision to designate a top Justice Department prosecutor to work on an investigation into the origins of special counsel Robert Mueller’s Russia investigation cements Barr’s status as political hack first and serious law enforcement officer second.
Barr’s appointment of another prosecutor to turn the tables on those who investigated President Donald Trump promotes Trump’s overtly political agenda and degrades the Justice Department, at the expense of sensible law enforcement strategy.
As a strategic matter, Barr has done the exact opposite of what any real prosecutor would do. With two investigations already ongoing into the origins of the Russia investigation – one by the Justice Department’s inspector general and another by the top Justice Department prosecutor in Utah – Barr has now assigned the US attorney for Connecticut to work on the matter.
Any serious prosecutor knows that whenever two investigations overlap, you “deconflict”: Make sure that neither investigation touches on the same subject matter and, if necessary, consolidate or coordinate. Prosecutors avoid duplicative investigations because they waste resources and, in some instances, yield inconsistent results. Yet Barr – by adding a new attorney – has seemingly ignored that.
And there is not any reasonable need for this additional appointment. We already know why the Russia investigation started. As Mueller details in his report, Trump campaign aides, including George Papadopoulos, had suspicious contact with Russians offering dirt on Hillary Clinton. Papadopoulos told an Australian official about his potential Russian connection, and the official then notified the FBI.
Barr’s latest decision plays right into Trump’s false narrative that the Russia investigation was a “hoax.” In fact, the investigation was extraordinarily productive. It revealed that Russia conducted a criminal effort to influence the 2016 election; that the Trump campaign knew about and “expected it would benefit” from that effort; that the campaign had dozens of contacts with Russians and lied about those contacts; and that some of the President’s top aides and advisers, including Paul Manafort, Michael Flynn, Michael Cohen and others, committed federal felonies along the way.
An important question remains: Did Barr ramp up the investigations on his own, or at the direction or suggestion of Trump? Trump denies giving such orders, though he’d hardly need to talk directly to Barr given his incessant Twitter rants about investigating the investigators. During his Senate testimony on May 1, Barr conspicuously sputtered when questioned by Sen. Kamala Harris.
Harris asked whether Trump or anyone at the White House had “ever asked or suggested that you open an investigation of anyone?” Barr – who is certainly smart enough to understand that question and give a straight answer – responded, “Um, the President or anyone else?” He then pretended not to understand the word “suggest” and then went with an inexplicable “I don’t know.”
Do not underestimate how absurd this exchange was. Barr feigned confusion about a word that an average fourth grader understands, then somehow claimed not to know whether the President told him to do something that he clearly must have known one way or the other.
Either Barr decided to accelerate an unnecessary and politically-driven case on his own, or he did it on presidential orders. Either way, Barr has shown terrible judgment and a disturbing willingness to use the Justice Department as a political tool.
Now, your questions
Christine, Washington: Is there a way that Congress can force all matters relating to subpoenas and contempt charges to be heard in court on a fast track?
Congress can and should request that the federal courts speed up review of disputes with the executive branch over enforcement of subpoenas relating to the unredacted Mueller report, former White House counsel Don McGahn’s testimony, Trump’s tax returns and other simmering disputes.
Legal battles over congressional subpoenas typically take months or years. For example, litigation over the congressional contempt citation of former Attorney General Eric Holder spanned nearly seven years. Congress cannot afford to wait even a fraction of that time to vindicate its core oversight authority.
I see two potential ways to speed things up. First, Congress can request that the federal courts appoint one judge as a “special master” to hear all congressional subpoena-related cases. And there is a recent example of this: a former federal judge was appointed special master to adjudicate disputes relating to the Michael Cohen search warrant documents. A similar appointment now would provide several benefits: The appointed judge can develop expertise, ensure that rulings are consistent and hear matters on an expedited basis, moving them to the front of the docket if necessary.
Even in the absence of a special master, judges could move to expedite these cases. And one judge already is. Judge Amit Mehta has decided to fast-track a congressional subpoena over Trump’s accounting firm’s records and is expected to rule as early as this week.
Second, Congress can invoke an obscure rule that allows direct appeal to the Supreme Court (enabling Congress to skip the lower courts and save time). The rule applies only if the court decides that “the case is of such imperative public importance as to justify deviation from normal appellate practice” and “require[s] immediate determination.”
Congress has a reasonable argument that inter-branch subpoena disputes are of unique public importance and must be resolved quickly, given the ongoing constitutional showdown between the legislative and executive branches. The Supreme Court rarely grants direct appeal outside of wartime, but it did so in another notable case involving the scope of executive branch authority: United States v. Richard Nixon.
Harry, Canada: If and when Mueller testifies, what if any limits are there on what questions Congress can ask him?
Technically, Congress can ask Mueller anything at all – unlike in federal courts, there are no formal rules of evidence or procedure applicable to congressional testimony – but there likely are limits on what Mueller will answer. Those limits likely will mirror some of the redactions made by Barr to Mueller’s report, including classified materials and information relating to ongoing criminal investigations. And Mueller cannot discuss grand jury materials, which ordinarily are secret, without a court order permitting disclosure – which House Judiciary Chair Rep. Jerrold Nadler has offered to seek in conjunction with Barr, but which Barr has declined.
Even with those limitations, Mueller’s testimony promises to be enormously consequential. Congress will press Mueller about whether he would have charged Trump with obstruction if not for the Justice Department policy against indicting a sitting president. And Mueller surely will be asked to elaborate on his letter criticizing Barr for misstating the “context, nature, and substance” of Mueller’s investigation. Even with limitations, the stakes will be stratospheric when Mueller takes his oath before Congress.
Carole, Florida: Since the House holds the “power of the purse,” what’s to prevent House Speaker Nancy Pelosi from clawing back appropriations to the Justice Department and the White House?
The House of Representatives holds “power of the purse” – the ability to raise money for the federal government (through taxes) and spend it (by allocating it to other federal entities). House leaders, including Rep. Adam Schiff, have begun to publicly discuss the possibility of withholding federal money as a way to pressure the White House to comply with congressional subpoenas. It remains to be seen whether this is strategic posturing or a genuine threat.
The threat of withholding federal funding may be the House’s most potent tool to force compliance, given the White House’s near-complete stonewalling of all congressional subpoenas thus far. But a purse-strings strategy carries political risks.
The White House surely will portray any congressional denial of federal funds as a temper tantrum imposing harm on the executive branch (and more broadly the American people) to strong-arm compliance with politically-motivated subpoenas. If anything goes wrong within the jurisdiction of any federal agency denied funding, the White House will point to Congress and say, “blame them for cutting off funding.”
House Democrats, meanwhile, will claim Trump forced their hand by ignoring constitutional checks and balances and essentially overriding the authority of Congress to conduct oversight. As House Oversight Chair Rep. Elijah Cummings said: “If a president can get away with blocking any information or anybody from testifying before the Congress, what road are we going down?” This will be a moment of truth and a test of how far Congress is willing to go to protect its constitutional standing.
Trevor, New Jersey: Given this Trump administration’s propensity to subvert the norms of the presidency, can Congress pass legislative changes to uphold them – for example, requiring presidential candidates to disclose tax returns?
The short answer is yes. But why? Our legal system consists of both written laws and an unwritten but widely observed set of behavioral norms. There are things you are strictly not allowed to do (laws) and things that, while legal, you just don’t do (norms).
Of course, norms change with time, and violation of norms can lead to new laws. The bipartisan Task Force on Rule of Law and Democracy recently issued a report on the history of norms becoming laws. For example, it was long understood but not formally encoded in law that a president should serve two terms maximum; after Franklin Delano Roosevelt broke that norm and won third and fourth terms, we amended the Constitution to explicitly set a two-term maximum. Another norm prevented Presidents from appointing family members to Cabinet positions – until John F. Kennedy nominated his brother Robert Kennedy as attorney general, prompting Congress to pass a law prohibiting officials from appointing relatives to federal agencies over which they have jurisdiction or control.
We might see several laws passed in the wake of the Trump presidency to address his norm-breaking. The task force recommends a spate of new laws requiring disclosure of tax returns and financial information by presidential candidates, limiting presidential interference in Department of Justice matters and barring presidential self-pardons, among others. California is already considering state-level legislation to require presidential candidates to make financial disclosures as a precondition to appearing on the ballot.
Lisa, Washington: What happens if McGahn decides on his own to testify – regardless of whether or not Trump invokes executive privilege of his live testimony?
The White House has invoked executive privilege to try to prevent McGahn from producing documents to Congress (and almost certainly will make the same claim to bar McGahn’s live testimony). I believe that executive privilege argument ultimately will fail on the merits in court.
Until a court rules on the executive privilege issue presented here, there is nothing physically preventing McGahn from defying the White House and testifying. But McGahn’s counsel has stated that he will defer to the White House for now, pending either an agreement between the White House and Congress or a court ruling.
If Congress and McGahn did somehow agree that McGahn would defy the White House’s invocation of executive privilege and testify anyway, then the White House likely would seek an emergency court order to prevent it. Don’t expect to see McGahn testify in Congress until either all parties agree (which is unlikely) – or a court rules on executive privilege.
Three questions to watch for next week:
1) Will Congress and the executive branch reach an agreement over whether and when Mueller will testify?
2) Is there a widening rift between Trump and McGahn, a potentially crucial witness against Trump on obstruction?
3) Will other federal judges follow the lead of Judge Mehta, who expedited a hearing about Trump’s objection to a congressional subpoena?
