CAFE Brief 05/07: Contempt of Congress, Trump’s tax returns, and the ACA

CAFE Brief 05/07: Contempt of Congress, Trump’s tax returns, and the ACA


There is no shortage of news this week: on Wednesday, the House Judiciary Committee will vote on whether or not to hold Attorney General Bill Barr in contempt of Congress, the Treasury Department continues to resist the House Ways and Means Committee’s request for Trump’s tax returns, and the Justice Department is spearheading efforts to destroy the Affordable Care Act. Let’s dive in!


A name card marks the empty spot where Attorney General William Barr has refused to testify before the House Judiciary Committee about special counsel Robert S. Mueller III’s report on Russian interference in the 2016 U.S. presidential election, at the Rayburn Building on Thursday, May 2, 2019, in Washington, DC. Barr’s move raises the prospect that Democrats will hold the nation’s top law enforcement officer in contempt of Congress.
(Photo by Jahi Chikwendiu/The Washington Post via Getty Images)

Obstruction of justice statement

As of Monday afternoon, over 400 former federal prosecutors of Republican and Democratic affiliation have signed a statement declaring that Mueller’s findings would have produced “multiple felony charges for obstruction of justice” against Trump if it were not for the Office of Legal Counsel policy against indicting a sitting president. In support of their argument, the group cites: President Trump’s attempts to fire Mueller and falsify evidence to hide his actions, Trump’s efforts to limit the scope of Mueller’s probe, and Trump’s attempted witness tampering and intimidation. The statement concludes: “To look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.”

Contempt vote

In a letter addressed to House Judiciary Committee Chairman Jerry Nadler last week, the Justice Department stated that the Committee’s subpoena for an unredacted Mueller report and all underlying evidence “is not legitimate oversight” and “lacks any legitimate legislative purpose,” calling the subpoena “overbroad and extraordinarily burdensome.”

Perhaps unsurprisingly, Attorney General Barr failed to meet Nadler’s Monday deadline for complying with the subpoena. In response, the Committee scheduled a Wednesday morning vote to determine whether or not to hold Barr in contempt of Congress. In a report that accompanies the vote notice, Nadler argues that complete and unhindered access to material produced and collected by Mueller is “essential to the Committee’s ability to effectively investigate possible misconduct, and consider appropriate legislative, oversight, or other constitutionally warranted responses.”

Following the House Judiciary Committee’s vote announcement, Assistant Attorney General Stephen Boyd sent a letter to Nadler inviting Committee members to convene with the Justice Department on Wednesday afternoon “to negotiate an accommodation that meets the legitimate interests of each of our coequal branches of government.”

Did Barr commit perjury?

House Speaker Nancy Pelosi’s accusation last week that Attorney General Barr committed “a crime” refers to Barr’s response at an appearance before the House Committee of Appropriations on April 9. Rep. Charlie Crist asked Barr about his familiarity with media reports alleging that members of Mueller’s team had expressed frustration over Barr’s characterization of the report. Barr answered vaguely, giving the impression that he was largely unaware of these allegations. On May 1, the Justice Department released Mueller’s letter submitted to Barr—dated March 27—that stated: “The summary letter the Department sent to Congress and released to the public…did not fully capture the context, nature, and substance of this Office’s work and conclusions.”

As Lawfare explains, “the legal standard for perjury is a high one, and it’s highly unlikely that the attorney general’s comments clear that bar.” Perjury is “extremely difficult to prove” because a prosecutor has to demonstrate that the person “willfully” made a “material misstatement of fact.” According to Lawfare, Rep. Crist’s question was “ambiguous,” leaving open the opportunity for Barr to interpret the question in various ways, precluding any successful perjury claim.

Mueller’s testimony

President Trump now objects to Mueller testifying before Congress. On Sunday, Trump tweeted that Democrats may be “looking for a redo because they hated seeing the strong NO COLLUSION conclusion.” He added, “Bob Mueller should not testify. No redos for the Dems!” The tweet was sent hours after Rep. David Cicilline told Fox News that Mueller agreed to a “tentative date” of May 15 to appear before the House Judiciary Committee, though Cicilline later recanted his statement in a tweet saying “nothing has been agreed to yet.” Harvard Law School professor Laurence Tribe told The Washington Post that “there is no way Trump can stop Bob Mueller from testifying.”

Treasury refuses tax return request

Secretary Steven Mnuchin informed the House Ways and Means Committee on Monday that the Treasury would not be turning over six years of President Trump’s tax returns, as the Committee requested. In a letter dated May 6 to Committee Chairman Richard Neal, Mnuchin stated: “In reliance on the advice of the Department of Justice, I have determined that the Committee’s request lacks a legitimate legislative purpose, and pursuant to section 6103, the Department is therefore not authorized to disclose the requested returns and return information.” Though several lawmakers have publicly announced that they intend to challenge the Treasury’s rejection in court, The Washington Post notes such a lawsuit would likely take months to resolve and could “ultimately end up before the Supreme Court.”


NEW YORK, NEW YORK – APRIL 30: The New York headquarters for Deutsche Bank stands along Wall Street on April 30, 2019 in New York City. President Donald Trump has filed a lawsuit in federal court seeking to keep two banks, Deutsche Bank and Capital One, from acting on congressional subpoenas, setting up a legal showdown with Democrats eager to investigate his finances. (Photo by Spencer Platt/Getty Images)

Deutsche Bank lawsuit

In the lawsuit that President Trump and three of his adult children filed against Deutsche Bank and Capital One last week, Trump’s attorneys filed a motion for a preliminary injunction to prevent the banks from handing over the Trump family’s financial records until the court rules on the legality of the congressional subpoenas for the documents. The motion argues that Trump, his family, and his businesses “will suffer irreparable harm because, if this Court does not intervene to preserve the status quo, there will be no way to unring the bell once the Banks give Congress the requested information.”

The House of Representatives General Counsel Office sent a letter to SDNY Judge Edgardo Ramos, who is presiding over the case, requesting to add the House Financial Services Committee and the House Intelligence Committee as defendants. Judge Ramos granted the committees’ request to “intervene” in the case.

Affordable Care Act

Last week, the Justice Department joined a coalition of Republican-led states arguing that the Affordable Care Act (ACA) should be struck down in its entirety. The brief, filed in the U.S. Court of Appeals for the Fifth Circuit, requested that the court uphold U.S. District Judge Reed O’Connor’s ruling from December 2018, which struck down the law. Judge O’Connor, based in the Northern District of Texas, held that without a tax penalty, the ACA’s requirement that most Americans have insurance is unconstitutional.

California Attorney General Xavier Becerra, among others, are defending the ACA in arguments set to begin in July. “Our legal coalition will vigorously defend the law and the Americans President Trump has abandoned,” Becerra said in a statement to The AP.

ICE nomination

The New York Times reports that President Trump intends to nominate Mark Morgan, who served as chief of the Border Patrol in the final months of the Obama administration, to be Director of Immigration and Customs Enforcement. In a Fox News interview, Morgan supported sending migrants to sanctuary cities and backed Trump’s characterization of a “crisis” at the southern border. “What the president is saying and what they’re trying to do as far as the policy goes, it’s based on reality and fact…Anyone who says this is a manufactured crisis is absolutely misleading the American people,” Morgan said.

What else?

  • President Trump spoke with Russian President Vladimir Putin for over an hour on Friday, but did not bring up potential Russian interference in the 2020 U.S. elections.
  • Massachusetts district attorneys and public defenders filed a lawsuit that seeks to bar federal authorities from arresting people for civil immigration violations while they are at state courthouses. The lawsuit alleges that victims and defendants are too afraid to come to courts staked out by immigration agents, creating obstacles to the administration of justice.
  • In a court filing in the case against Roger Stone, federal prosecutors argued that proof of an underlying conspiracy is not necessary to prosecute Stone for lying to Congress and obstruction.
  • The U.S. Court of Appeals for the First Circuit set precedent in rulingthat a Maine jail must provide an inmate with opioid addiction medication.
  • On Friday, the U.S. District Court for the Southern District of Ohio determined that Ohio’s congressional map is an “unconstitutional partisan gerrymander” and must be redrawn by the 2020 election.
  • On Monday, Michael Cohen, former lawyer for President Trump, began serving his three-year prison sentence for tax evasion, lying on bank statements, and campaign finance violations.

Stay Informed,

Adrienne Cobb & the CAFE team

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