Democrats overplayed their hand in trying to get the full Mueller report, and now it's coming back to bite them

FILE PHOTO: House Judiciary Committee Chair Jerry Nadler (D-NY) chairs a House Judiciary Committee hearing on FILE PHOTO: House Judiciary Committee Chair Jerry Nadler (D-NY) chairs a House Judiciary Committee hearing that U.S. Attorney General Barr had been scheduled to appear at on Capitol Hill in WashingtonReuters

  • Two major developments in the fight between Congress and the White House over Robert Mueller's findings in the Russia probe laid bare how Democrats overplayed their hand while trying to get Mueller's unredacted report.
  • The House Judiciary Committee voted Wednesday to hold Attorney General William Barr in contempt of Congress.
  • In retaliation, President Donald Trump invoked executive privilege over Mueller's report, its underlying evidence, and all material related to the report that's been subpoenaed by Congress so far.
  • The speed with which Democrats moved to hold Barr in contempt is unprecedented. And Trump's response - invoking privilege - is a stall tactic that will force Democrats to jump through more hoops to get what they want.
  • Democrats also likely wouldn't get a favorable outcome if they go to court to try to get the full Mueller report and its underlying evidence.
  • "It's hard for Democrats to argue why they didn't at least take up the [DOJ's] initial offer to view a less-redacted version of the report before moving forward with contempt," said one former congressional lawyer.
  • Visit BusinessInsider.com for more stories.

The war between the White House and Congress hit a flash point this week, when both sides took drastic measures in their fight over the special counsel Robert Mueller's unredacted report in the Russia investigation.

The Democratic-led House Judiciary Committee voted on Wednesday to hold Attorney General William Barr in contempt of Congress for failing to meet this week's deadline to turn over the unredacted report and its underlying evidence.

In turn, the White House - acting on Barr's advice - invoked executive privilege over the entire report, the underlying evidence, and all other material related to the report that Congress has subpoenaed so far.

The move set the stage for what's likely to be a lengthy court fight between the executive and legislative branches.

It also laid bare how Democrats overplayed their hand in trying to get the full Mueller report, and how it's coming back to bite them.

Read more: Trump just walked back his claim that there was 'no obstruction' in the Mueller probe in a big way

Mueller testimonyFBI Director Robert Mueller testifies before a Senate Judiciary Committee hearing in Dirksen Building on oversight of the FBI.Tom Williams/CQ Roll Call

Justice Department officials most recently offered to allow 12 lawmakers and two of each of their staffers to view a minimally redacted version of the report. They also said lawmakers and staffers could keep any notes they took of the document.

Democrats shot down the offer. Instead, they pushed for the full judiciary and intelligence committees - and three of each member's staffers - to view the entire report, underlying evidence, and grand jury material.

After the DOJ refused, the judiciary committee began voting to hold Barr in contempt, and Trump retaliated by invoking executive privilege over the Mueller report.

Following Trump's privilege assertion, the likely next step for Congress will be to go to court and obtain a legal declaration saying the claim is without merit.

But Frank Bowman, a law professor at the University of Missouri, told INSIDER that "even though the breadth of Trump's executive privilege claim shows it's transparently invalid, the objective is to make Congress jump through a bunch of hoops in the courts, which will be a slow process. It's a stall."

Ultimately, Bowman predicted, the privilege claim will likely be struck down.

"This assertion is a blanket denial of Congress' ability to inquire about executive misconduct," he said. "I can't imagine the judiciary would ultimately put up with this."

Read more: The Republican-led Senate Intelligence Committee reportedly subpoenaed Donald Trump Jr. to answer questions about the Russia probe

Donald TrumpPresident Donald Trump in the Diplomatic Reception Room of the White House on March 25, 2019.Michael Reynolds - Pool/Getty Images

But that doesn't mean Congress will come out on top.

Mitchel Sollenberger, a politics professor at the University of Michigan, told INSIDER that more than anything else, he was shocked at the speed with which House Democrats moved to hold Barr in contempt.

The last time Congress held an attorney general in contempt was in 2012, when 17 Democrats joined the Republican majority after Eric Holder repeatedly refused to turn over documents related to Operation "Fast and Furious."

Ultimately, a federal judge tossed out the charges, and Holder avoided severe penalties. But nearly a year passed before Congress went from negotiating with the DOJ to moving forward on a contempt citation against Holder.

In Barr's case, as House Judiciary Committee ranking member Doug Collins noted on Wednesday, "[Democrats] have moved from request to contempt vote in only 43 days, and yet the Justice Department is still at the negotiating table - waiting for Democrats to arrive in good faith."

"There's a dance that goes on between the executive branch and legislative branch when it comes to getting documents and testimony," Sollenberger said. "This dance hadn't even entered its first move, so I'm flabbergasted at where we are right now."

Read more: New York is poised to pass 2 bills that would make it easier for Congress to get Trump's taxes and weaken his pardon power

FILE PHOTO: Rep. Jerrold Nadler (D-NY) speaks to the media as he arrives on Capitol Hill in Washington, U.S., December 7, 2018. REUTERS/Joshua Roberts/File PhotoFILE PHOTO: Rep. Jerrold Nadler speaks to the media as he arrives on Capitol Hill in WashingtonReuters

Meanwhile, to get access to sensitive information contained in the report, like grand jury material, the judiciary committee could go to court.

"But if this goes to court, there's a strong chance the judge would say the DOJ was being pretty reasonable with its offers," Michael Stern, a former lawyer who served as senior counsel to the House of Representatives from 1996 to 2004, told INSIDER.

He added: "It's logical for the DOJ to offer a limited look while it conducts a more thorough review of the redactions. And it's hard for Democrats to argue why they didn't at least take up the initial offer to view a less redacted version of the report before moving forward with contempt."

Stern described executive privilege as a "balancing test" between the interests of the executive and legislative brances.

"The judge would likely say, 'OK, there are issues of executive privilege here, but you want me to try to resolve that when you haven't even taken up the offer of looking at the material to explain why you need it,'" he added. "So they'd probably end up telling lawmakers to do that first, before asking for more."

In other words, Democrats could spend months, possibly years, tangled up in the legal process and end up with the same choice they were given to begin with.

The only way to circumvent that, experts say, is for congressional Democrats to argue they need access to the full report and grand jury material because they're relevant to impeachment proceedings. But senior Democrats are pumping the brakes on impeachment from fear of political backlash.

In all, from both a political and legal standpoint, it looks like Democrats overplayed their hand.

"If their interest is simply getting the information for further investigation, they didn't handle this well," Stern said.

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