Mueller-Report Standoff Echoes 1982 Fight Involving Neil Gorsuch’s Mother

Thorny legal questions about relations between Congress and executive branch could be decided by Supreme Court

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.

Mr. Reagan’s executive-privilege claim prompted a fight with Congress that would result in the contempt citation against Ms. Burford. The Justice Department then filed suit on behalf of Ms. Burford to try to stop the subpoenas. Ms. Burford, in her memoir, called the lawsuit “the sloppiest piece of legal work I had seen in twenty years of being a lawyer.” Ultimately, a judge dismissed the case, saying that he could only rule on the issue if Ms. Burford were being criminally prosecuted for her refusal—and encouraged both sides to reach a compromise.

.. One of Justice Gorsuch’s most controversial opinions also stems from a case that involved the EPA under Ms. Burford’s leadership, Mr. Somin noted. The legal theory of “Chevron deference” says that courts should defer to administrative agencies. It stemmed from a 1984 Supreme Court case involving the EPA’s attempts to regulate air pollution.

Though the Supreme Court upheld deference to the EPA which was led by his mother when the case was first brought, Justice Gorsuch has called the decision an “abdication of the judicial duty” and suggested he would vote to overturn the precedent if a similar case came before the Supreme Court.

Trump Asserts Executive Privilege Over Mueller Report Material Sought by House Democrats

Move comes as House panel considers holding Attorney General William Barr in contempt of 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

.. Contempt resolutions against cabinet secretaries are rare, but not unprecedented. A Republican-led House held former Attorney General Eric Holder in contempt in 2012.

However, the Trump administration’s broad refusal to cooperate with any oversight requests from Democratic committees has elevated tensions between the two branches to levels unseen since events the magnitude of President Bill Clinton’s impeachment, the Iran-Contra arms scandal and Watergate.

A move to invoke executive privilege—a doctrine that some executive branch materials can be shielded from disclosure to preserve candid advice to the president—is all but certain to provoke a constitutional challenge in the courts.

A similar challenge was heard 45 years ago by the U.S. Supreme Court in the landmark case United States v. Nixon at the height of the Watergate scandal. Then, a unanimous high court sharply limited the ability of a president to claim executive privilege.

 In the Nixon litigation, however, the issue was whether the president had to obey a grand-jury subpoena in the context of a criminal inquiry by a special prosecutor. Now, it is Congress seeking access to a different type of material. How modern courts, including the current group of Supreme Court justices, would weigh a congressional demand for such information remains far from certain.

Any executive-privilege ruling by the Supreme Court on a document like the Mueller report and its underlying evidence is fraught with peril for both Congress and the executive branch, which have traditionally tried to compromise in such matters. A legal fight could reshape the relationship between the two branches of government for decades to come.