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Democratic House Judiciary chairman Jerrold Nadler recently attracted public attention over his claims that America is in a constitutional crisis. This comes after Congress voted to hold Attorney General William Barr in contempt after denying them full and un-redacted Mueller report and not showing up for a hearing by the House. “We’ve talked for a long time about approaching a constitutional crisis,” Nadler told CNN, “We are now in it.”
When asked about it, Democratic House Speaker Nancy Pelosi gave the same pronouncement.
In March 2019, Barr released the Mueller report after necessary legal redactions by the Attorney General, Deputy AG Rod Rosenstein, and head of Special Counsel, Robert Mueller. The investigation, “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
Democrats claimed that the 448 pp. report isn’t enough and demanded the full report. Barr later released a less redacted version of the report to members of Congress. It only contained very few redactions, only a few lines, in fact , but not a single Democrat has looked at it.
Although Democrats continue to demand the release of the report, not only is the AG not legally obligated to release it, but he is prohibited from doing so, in accordance with the Federal Rule of Criminal Procedure 6(e), which prohibits the disclosure of grand jury material, even to members of Congress. Barr would have to break the law in order to appease them.
Despite having testified for hours before the Senate Judiciary Committee earlier this month, Democrats remained unsatisfied, calling Barr before the House House Judiciary Committee as well. Barr declined to do so because he did not want to be questioned by people other than members of Congress. This was followed by the vote declaring Barr as being in contempt of Congress, and Nadler’s claims that we are in a constitutional crisis.
The contempt declaration is unlikely to have much effect. Former Attorney-General Eric Holder, who described himself as Obama’s “wingman”, was declared to be in contempt of Congress for refusing to testify about the scandal “Fast and Furious”, but the declaration of Contempt of Congress was of little consequence.
Is the Trump administration’s refusal to follow Congress’s directions truly a constitutional crisis? Not at all. Not only is this not a new situation, but this is exactly what is needed to preserve our republican form of government, as counter-intuitive as that may seem. Congress is not superior to the Executive Branch, as Nancy Pelosi has claimed. No branch of government is superior to the other.
In Federalist Paper No. 51, entitled “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments”, Madison, wrote the following.
“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.
…It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.”
So it was not intended that one branch should necessarily obey the other, although it is often desirable to work together. But this is not always desirable. Gridlock, although not pleasant for either party, is necessary in order to prevent the whole government from running in one direction for too long a time, but can be overcome if both sides put aside partisan politics. Gridlock is both normal and necessary, and not a constitutional crisis.