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DOJ, House Intel return to norms, compromise on redacted Mueller report materials

DOJ will furnish 12 categories of counterintelligence materials ‘by the end of next week,’ Chairman Schiff says

Rep. Adam Schiff, D-Calif., has agreed to a compromise with the Justice Department over the schedule of the Mueller report’s counterintelligence materials DOJ will hand over to the committee. (Tom Williams/CQ Roll Call file photo)
Rep. Adam Schiff, D-Calif., has agreed to a compromise with the Justice Department over the schedule of the Mueller report’s counterintelligence materials DOJ will hand over to the committee. (Tom Williams/CQ Roll Call file photo)

The House Intelligence Committee chairman has accepted a Justice Department offer to provide the panel with 12 categories of counterintelligence and foreign intelligence materials underlying the Mueller report.

As a result of the eleventh hour agreement, Intelligence Chairman Adam Schiff canceled a Wednesday committee meeting where members were expected to vote on an “enforcement action” to compel Attorney General William Barr to comply with a sweeping subpoena. The committee was seeking the full report by special counsel Robert S. Mueller’s on his investigation into Russian election interference in 2016 and its underlying materials.

[Mueller says messaging apps likely destroyed Trump-Russia evidence]

While DOJ has only agreed so far to produce an initial tranche of counterintelligence documents that the subpoena demands, that was enough for Schiff to postpone any further action — for now.

“The Department of Justice has accepted our offer of a first step towards compliance with our subpoena, and this week will begin turning over to the Committee twelve categories of counterintelligence and foreign intelligence materials as part of an initial rolling production,” Schiff said in a statement Wednesday.

[3 things about Congress buried in the Mueller report]

The California Democrat expects DOJ to furnish those materials “by the end of next week,” after it consults with the intelligence community on possible redactions. Republicans on the Intelligence Committee had joined Democrats in their request for the counterintelligence information.

The agreement between DOJ and the intelligence panel marks a surprising return to historic norms of congressional information sharing for a Trump administration that has adamantly opposed Democratic efforts to conduct oversight over the last five months.

“This is the way disputes between Congress and the Executive Branch have historically been resolved — through negotiation and compromise,” said Chris Armstrong, a partner at Holland & Knight where he handles congressional investigations for clients. He was previously chief oversight counsel for the Senate Finance Committee under Utah Republican Sen. Orrin G. Hatch.

“When either of the first two branches rely on the third to enforce their powers or privileges, they are in a weaker position and risk harmful precedent,” Armstrong said.

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Historically, both the legislative and executive branches have been reluctant to take their squabbles over congressional oversight to court for a couple of reasons: The risk for Congress, is a litigation battle could drag on for years — well after a president is out of office and an alleged scandal has faded from public interest; And the risk for the president is that the courts usually (eventually) side with Congress, setting unwanted precedents that hamper future attempts to shield other executive branch information from oversight investigators.

“There have been very few court cases. Both sides are very hesitant to take it to court to set precedent,“ said former House Oversight and Government Reform Chairman Tom Davis. 

“Generally, these things are worked out,” without involving the courts, he said. “You’ve got to go through the dance first to see where public opinion lies, feel out where the other side is willing to compromise.”

Despite the ceasefire reached Wednesday, Schiff has kept the subpoena for the Mueller report on file and will continue to dangle the threat of an “enforcement action” over DOJ’s head, he suggested in his statement Wednesday.

“The Committee’s subpoena will remain in effect, and will be enforced should the Department fail to comply with the full document request,” the Intelligence chairman said.

Though the committee has accepted DOJ’s olive branch for the time being, Assistant Attorney General Stephen Boyd warned in a letter Tuesday that the department could snatch it back if the situation reescalates.

If Schiff votes to hold Barr in contempt or executes any other “enforcement action,” then the Department “will not likely be able to continue to work with the Committee to accommodate its interests in these materials,” Boyd wrote.

“We hope that such a step will not prove necessary because there is no reason why the Department and the Committee cannot work out an accommodation that would meet both of our legitimate needs,” he wrote.

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