Is Investigating Barr ‘a waste of time’? It depends on the goal. But no

From his handling of the Meuller report, to his direct order to clear peaceful protesters from Lafayette Square, to his out of the blue firing of U.S. Attorney Geoffrey Berman, Attorney General William Barr has no shortage of controversies in his tenure as the nation’s top lawyer. 

And though there have been regular calls for his resignation, firing, or impeachment for months, Barr’s latest drama of firing Berman—the Southern District of New York U.S. Attorney who was overseeing investigations into Trump, allies including Rudy Guilliani—has intensified calls for Congress to use its oversight powers to check Barr’s actions, and potentially impeach the AG for wrongdoing.

But House Judiciary Chairman Jerry Nadler (D-New York) quickly threw cold water on the idea by characterizing any Barr impeachment efforts as a “waste of time” because of his inevitable acquittal by “corrupt” Senate Republicans. 

This response, for many, was a frustrating dereliction of congressional duty to oversee the actions of the president and his executive branch. But is Nadler right? It depends on the goals of congressional Democrats. If the goal is Barr’s impeachment, their efforts are likely a waste of time because Barr would undoubtedly be acquitted by the GOP-controlled Senate. But, even with this reality, if the aims of House Democrats are more institutional, political, or substantive in nature, they have much to gain and little to lose from investigations of Barr potential misdeeds. And they have a plethora of powers at their disposal to achieve them. 

So, then, given the compressed congressional calendar with an election less than six months away and an AG with a proven history of rebuffing congressional oversight, how should House Democrats proceed and why is investigating without a real threat of impeachment a winning move? 

Most importantly, and however naive it seems, investigating Barr’s actions as AG is the right thing to do from an institutional perspective. Congress is supposed to oversee the president and his agencies; if a majority of members in a congressional chamber believe there is sufficient cause to investigate wrongdoing, they have every right and responsibility to investigate. Doing so is vital, and not just when the political or electoral calendar is least affected. The precedent of letting an AG repeatedly thumb his nose at Congress and their oversight powers isn’t positive, no matter the political party in charge of Congress or the DOJ. 

But vitally, because Barr won’t face removal from office, any investigations in AG Barr’s  conduct from a separation of powers mindset should not come with the stated goal of his impeachment. Impeachment can be a quiet hope but it shouldn’t be the explicit catalyst. For many reasons, official House inquiries should be about information gathering into his potential wrongdoing and Congress’s role, responsibility even, as an independent branch to ensure the president and his agents are not abusing their offices. As was seen in the impeachment of President Trump, if House Democrats seem solely motivated by impeachment even prior to working an official inquiry, their motivations will give political cover to Republican’s that facts are secondary to their maniacal focus on investigating Trump and his administration. It would also minimize pressure on congressional Republicans to mandate Barr comply with the investigations because they can argue their Democratic colleagues will do anything to remove him from his post. (Plus, given the likelihood that congressional actions that attempt to compel Barr to comply with the investigation would end up in the courts, the motivations of Congress will be decidedly important when judges hear the case.) 

Though his waste of time comment has dominated the headlines, Nadler has already transitioned to this by-the-book stance for these reasons. He opened an immediate investigation into the Berman firing, including a Wednesday hearing with two DOJ whistleblowers, and is confident that the Barr will testify before the Judiciary Committee. This is a good start.

If the goal of investigating Barr is political (and all oversight efforts at the cabinet level have political factors involved), investigating Barr is great politics for Democrats, particularly with an election on the horizon. In 2018 voters gave House Democrats the majority—and the committee gavels and subpoena powers that come with it—for a reason: they wanted someone to stand up to perceived abuses of power by Trump and his administration. Opening an inquiry now signals that congressional Democrats take their jobs as a check on the Executive Branch as seriously in the last six months of the Congress as they did in the first six months of their majority. In fact, Democrats may risk some support by refusing to use their granted powers instead of using them without any real hope of impeachment. 

Relatedly, investigations force Republicans to take the other side and constantly defend Barr and the President by extension. The investigation will bring a constant barrage of media attention and questions to Republican lawmakers, and the day to day defense of Barr’s tactics will be draining to toe the party line. If a GOP lawmaker breaks from the party’s talking points, that’s a great news cycle for Dems. The contrast is great politics for Democrats, and their offence will make GOPs play defense.

Moreover, such media and public attention will prevent the GOP—many of whom are vulnerable Senators with the Senate majority increasingly up for grabs—from talking about their issues in an election year, and instead attaches them even more directly to an historically unpopular president and administration. Any internal vote related to an investigation (witnesses, document requests, etc.) becomes campaign fodder for Democrats who are attempting to label incumbent Republicans as Trump’s enablers. And should hearings commence, no one can be sure of what new information could come to light once witnesses are under oath and on camera. Oversight hearings are historically unpredictable.

And finally, if the Democrats’ goal is to actually substantively constrain Barr’s actions—or at least make him think twice that Congress can affect his actions using their powers—Congress must be willing to play hard ball. First, they must start with subpoenaing Barr. Though they have threatened multiple times, the House has never officially issued one demanding his appearance before one of its committees. Doing so raises the stakes of his ignoring of congressional oversight requests and takes away the talking point (and potential court argument) that if Congress really wanted to hear from him they would use every tool at their disposal to force compliance. Inviting him to come to Congress no longer is sufficient. Forcing Barr to ignore a subpoena puts contempt of Congress on the table, as well.

Second, should Congress really want to pressure Barr and DOJ compliance, they could use their most famous power: the power of the purse. As multiple congressional folks have pointed out going back to the President’s impeachment, one of the quickest ways to force concessions from an unwilling oversight actor is to link compliance with the agency’s funding levels, which Congress, of course controls through their appropriations authority. Functionally, House Democrats can attach amendments or riders to upcoming appropriations bills that stipulate nearly anything they are after: Barr’s testimony, document requests by specific deadlines (which are often ignored during oversight processes); increased protection of DOJ and other agency whistle blowers, and so on. Given some creativity in how the riders are written, House Democrats could create interesting and tough votes for their GOP lawmakers. For example, the following rider could be put to a vote: AG Barr is expected to appear before the Judiciary committee within 10 days, and for every day after the deadline the AG does not comply, the AG’s personal office would be docked 10 percent. Or his personal salary. Or his travel account is frozen. The list is endless.

In the end, holding oversight hearings is hardly a waste of time unless the sole goal is his impeachment. But if Congress has different goals, such as the preservation of institutional separation of powers, real substantive policy constraints on the AG, or even just sheer political gain, oversight of the AG’s actions may very well be a great use of the remaining six months before the 2020 election.