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WASHINGTON — Democrats who now wield gavels and subpoena power in the U.S. House of Representatives have not been shy in faulting their Republican counterparts for shirking oversight responsibility when they were in control over the past two years.
But there’s one key area — with potentially significant ramifications for the public’s understanding of the Mueller investigation — on which they agree: the GOP’s dogged and largely successful pursuit of sensitive documents from the Justice Department.
As the special counsel probe nears its conclusion and lawmakers still uncertain about just how much of Mueller’s work will be made public, Democrats are considering a number of political and legal pressure points previously employed by Republicans to try and extract materials from the Justice Department it otherwise might be loath to reveal voluntarily, setting up what could be a significant constitutional clash with the Trump administration over executive privilege and separation of powers.
You might call it the Devin Nunes playbook, based on tactics employed by the former House Intelligence Committee chairman and other GOP committee leaders to use subpoena power, threats of contempt and even impeachment to coerce the Justice Department into an unprecedented series of disclosures of materials related to both the Hillary Clinton email investigation and key aspects of the Russia investigation itself.
Now, House Intelligence Committee Chairman Adam Schiff is working closely with other top Democrats to consider strategies to ensure that the public has insight into not only any final report Mueller provides to Attorney General William Barr, but potentially additional insight into the probe’s inner workings in the form of reports on witness interviews, records of deliberations about charging decisions, grand jury testimony and potentially testimony from Mueller himself.
“I view the Mueller report as a bare minimum. And if there are questions that are raised by the report where we need more information, then we may very well seek to get it,” Schiff said in an interview with NBC News. “We may very well have to fight for everything we want to learn beyond that. But I think the Department of Justice has established now a firm policy that they’re going to have to live with.”
Democrats were among the first to criticize the Justice Department, beginning in late 2016, for succumbing to GOP demands related to the department’s probe of whether Clinton mishandled classified information and, later, its counterintelligence investigation into Russian interference in the presidential election.
Schiff says he was among those cautioning the department every step of the way that it was breaking from past practice of withholding documents at the core of its investigatory decisions, and pre-emptively warning that he expected the agency to apply any new standard to future investigations.
Already, Schiff and five other Democratic committee chairmen have put Attorney General William Barr on notice, asking in a letter not only to release Mueller’s report “without delay and to the maximum extent permitted by law,” but also other information Mueller’s team learned during the course of their investigation.
They cite the precedent the Justice Department set in “other closed and pending high-profile cases alleging wrongdoing by public officials” in which both “classified and law enforcement sensitive information” were turned over to the House.
The latter is critical, they add, as long as the department maintains its position that a sitting president cannot be indicted. “To withhold evidence of wrongdoing from Congress because the president will not be charged is to convert department policy into the means for a cover-up,” they write.
In 2017 Nunes launched what became a monthslong campaign to force the Justice Department to disclose some of the most sensitive materials in the hands of federal law enforcement: a FISA warrant against Trump campaign foreign policy adviser Carter Page and other related documents.
His and a parallel investigation by the Judiciary Committee yielded multiple subpoenas and threats to impeach Deputy Attorney General Rod Rosenstein when cooperation was deemed insufficient. The department at least once interceded with then-House Speaker Paul Ryan in an effort to have Nunes stand down, but Ryan deferred to committee chairmen.
Justice Department officials briefed reporters last July about the lengths they had gone to meet GOP demands, in one case making available 880,000 pages of documents to lawmakers. The department also had to create new search tools to inspect its internal systems for the most sensitive information that might be subject to GOP requests.
As the Justice Department began working to meet GOP requests, Schiff and other top Democrats were careful to put down markers whenever they felt it was improperly bending to GOP demands.
“With every disclosure, DOJ and FBI are reinforcing a precedent it will have to uphold, whether the Congress is in Republican or Democratic hands, of providing materials in pending or closed cases to the legislative branch upon request,” the top Democrats in the House and Senate wrote in relation to a briefing last June on a Nunes request related to a confidential witness in the Russia investigation.
A spokesperson for Nunes declined to comment on what steps Democrats might take and how they could mirror those he himself took in previous Congresses. But speaking at the Conservative Political Action Conference last week, Nunes said he would support maximum disclosure of Mueller’s work, albeit with a different goal.
“I want every email, I want everybody that they wiretapped, every warrant that they got. Every single thing that Mueller used needs to be made public for all of America to see,” he said. Nunes has previously said he would continue his investigation of potential political motivations by Justice Department officials investigating the president — something other senior Republicans are also pursuing.
Democrats say that efforts to provide for transparency into the Justice Department’s work is only one part of offering a full public accounting of potential foreign influence at the highest levels of U.S. government. That’s why Schiff says he’s expanded his committee’s probe to include questions of financial leverage Russia and other foreign actors might have over Trump or his family and allies.
The House Judiciary Committee, under its chairman, Rep. Jerrold Nadler, D-N.Y., is preparing to launch a series of hearings on potential abuses of power and obstruction of justice, a process being overseen by two outside lawyers the panel recently contracted with. Nadler's committee has also sent a request to former Trump campaign aide Sam Nunberg asking for asking for all documents he has shared with Mueller, the federal prosecutors in the Southern District of New York, Congress or any other investigatory agency.
And the House Oversight Committee, under Chairman Elijah Cummings, D-Md., is also working to learn more about potential campaign finance violations in 2016 — a key reason it invited former Trump lawyer Michael Cohen as its first marquee witness.
“People will be reading about what’s happening now 200 years from now and they will be asking the question, ‘What happened?’ And all I want to do is make sure the record is clear and I want it so information comes out now and not when we are dancing with the angels,” Cummings told reporters this week.
Rosenstein, speaking at an event in Washington last week, seemed to lower expectations about what the department would be willing to offer in relation to Mueller.
“Just because the government collects information, doesn’t mean that information is accurate. It can be really misleading if you’re overly transparent about information that the government collects. So I think we do need to be really cautious about that,” he said.
White House counsel Pat Cipollone, who joined the administration late last year, is leading the response to House Democratic investigators on other matters. A White House official tells NBC News the administration has not yet determined whether it will assert executive privilege as a means of keeping secret Trump’s confidential discussions with top advisers and protecting material related to internal deliberations. The official says the White House will weigh House Democrats’ requests on a case-by-case basis after Mueller submits his final report.