The standoff between Attorney General William Barr and Congress over access to the full, unredacted report from special counsel Robert Mueller has parallels to a 1982 fight involving the late Anne Gorsuch Burford, then administrator of the Environmental Protection Agency.
The thorny legal questions about relations between Congress and the executive branch that were in play then and today could end up being decided by a Supreme Court that now features her son, Neil Gorsuch.
Then, like now, a Democratic House of Representatives wanted access to documents that a Republican president said were privileged law-enforcement materials. As a result of the Reagan administration’s refusal to comply with a congressional subpoena, Ms. Burford was cited for contempt, sparking a legal battle that culminated in her resignation.
Mr. Barr, who was a young lawyer in the Reagan administration at the time of the showdown involving Ms. Burford, is also expected to be cited for contempt. House Democratic leaders have scheduled a vote this week on a contempt resolution that would authorize a House lawsuit for access to the full Mueller report on Russian election interference. The Trump administration has said the report is protected by executive privilege. Another House committee is considering a separate contempt effort against Mr. Barr over census documents.
If either measure passes the full House, Mr. Barr will be only the third agency head ever held in contempt of Congress. Ms. Burford was the first, and Eric Holder, who was attorney general under President Barack Obama, was the second.
The Supreme Court has never decided the question of whether a congressional demand for information can overcome an executive-privilege claim by a presidential administration.
The 1982 fight involving Ms. Burford had its roots in the belief among a number of young lawyers in the Reagan administration that the Watergate scandal had weakened the presidency as an institution. Those lawyers wanted a test case to strengthen the executive branch’s hand in fighting back against demands from Congress for information and found one in Ms. Burford.
The Burford fight “was all part of the Reagan plan to retrieve purported lost powers as a result of Watergate and to create this unitary executive theory,” said Morton Rosenberg, a longtime legal analyst for the Congressional Research Service and now a fellow at the nonpartisan Project On Government Oversight.
Ms. Burford wrote in her 1986 memoir “Are You Tough Enough?” that the Reagan administration had first sought to enlist the interior secretary and the attorney general as possible test cases on executive privilege but they refused. Ms. Burford, however, agreed to test the constitutionality of an executive-privilege claim by refusing to hand over documents to Congress.
At issue were congressional subpoenas demanding information on hazardous waste dumps from the EPA. Mr. Reagan ordered Ms. Burford not to comply with the subpoena, citing the doctrine of executive privilege—a legal theory that has been blessed by courts that allows a president to shield some documents from public scrutiny in certain circumstances. In the landmark 1974 case United States v. Nixon, a unanimous Supreme Court said that executive privilege doesn’t protect documents in a criminal inquiry—in that case, Watergate—but has never decided a matter involving Congress.
President Trump has asserted executive privilege on all the material in special counsel Robert Mueller’s report that House Democrats have demanded in a major escalation of the continuing fight over access to the documents.
The move came as Democrats on the House Judiciary Committee planned a vote on holding Attorney General William Barr in contempt for his refusal to comply with a subpoena issued by the committee for the unredacted Mueller report and its underlying evidence.
The White House accused the House panel of acting only to damage Mr. Trump politically—calling Mr. Nadler’s actions “unlawful and reckless” and saying they would invoke executive privilege over the papers.
“Faced with Chairman Nadler’s blatant abuse of power, and at the Attorney General’s request, the President has no other option than to make a protective assertion of executive privilege,” said White House press secretary Sarah Sanders in a statement.
The dispute centers around the unredacted version of the Mueller report and the underlying evidence—some of which the Justice Department says by law it cannot provide because, in part, it involves grand-jury testimony that is secret. Democrats subpoenaed the material last month—saying that it was necessary for Congress to independently examine the material and the basis for Mr. Mueller’s findings.
.. The Justice Department, in its recommendation to Mr. Trump on executive privilege, said it was necessary to preemptively invoke the privilege to protect the administration’s prerogatives.
In response to the department’s ongoing refusal to provide the documents, the House Judiciary Committee is considering a contempt resolution against Mr. Barr