When Attorney General William Barr stepped up to the press conference podium at 9:30 in the morning of April 17, nobody quite knew what was to come next.

The culmination of 22 months was about to drop, and Barr said, in so many words, that the President of the United States was not guilty of obstruction of justice nor conspiracy against the United States (the official term for “collusion”).

According to the Attorney General, given that there was no collusion, there was no underlying malignant motive required to prove obstruction. In an earlier March 24 letter to the Chair of the House Judiciary Committee, Barr claimed that the report and the underlying evidence was not sufficient to construct a valid obstruction case against the President.

A few hours after the press conference, the redacted version of Special Counsel Robert Mueller’s report dropped. What followed in the past weeks is a series of subpoenas — which are legally binding — passed by the House and Senate Judiciary committees. The three keystone points of conflict between the Judiciary committee and the White House is the Mueller testimony, the unredacted report and underlying evidence, and McGahn’s testimony.
In effect, the White House has denied all three subpoenas. This amounts to a Constitutional crisis unlike any other seen before.

The three flashpoints

The three subpoenas that have caused the greatest friction are that of Mueller, Don McGahn, the former White House counsel, and the unredacted Mueller report and the underlying evidence.

To first understand the importance of these subpoenas, it is important to highlight that these are binding declarations that require either the presence or the submission of the subject in question. In doing this, both documents and people can be subpoenad.

“Our subpoenas are not optional,” House Judiciary Committee chair Jerry Nadler (D-NY) said. “This committee will hear Mr. McGahn’s testimony, even if we have to go to court to secure it.”

The reason that each of the three subpoenas are important is that they would be the keystone documents in constructing an obstruction case.

The unredacted Mueller report is crucial due to its nature. Initially, this report was commissioned as a fact-finding investigation into the presidency regarding conspiracy. However, over the course of the investigation, it became clear that a further investigation into the obstruction of the probe was necessary. The report released was redacted significantly, with the predominant redaction being under the “Harm to ongoing matters” (HOM) category. By the admission of the Attorney General, the HOM redaction was used liberally, and could be reduced. Since then, it has been released to a number of senior Democratic and Republican lawmakers.

However, senior Democrats such as Nancy Pelosi (D-CA) and Adam Schiff (D-CA) have boycotted the less redacted report, saying that only the wholly unredacted report and the underlying evidence was sufficient. The House Judiciary Committee has subpoenaed the full report, including the underlying evidence behind the report. This was done to allow the committee to come to a decisive conclusion regarding the Trump-Russia issue, being that the report itself was indecisive in terms of indictments given the legal framework that surrounding the report.
According to Mueller, the precedent that the Office of Legal Counsel established prohibited him from issuing a legal conclusion as to the evidence he found. The precedent, which was established under the Assistant Attorney General under Bush 43, was that no executive office could file an indictment of the sitting president.

Simply, the DOJ has not complied with this subpoena.

Given the non-opinion nature of the Mueller’s report, the White House, and their adherents on Fox have claimed that the report is a “complete and total exoneration.”

However, Mueller’s team and their associates have not agreed at all. Some found the evidence found in the report as “worrying.” Furthermore, the report was filtered through Attorney General Barr and former Deputy Attorney General Rod Rosenstein.

The House Judiciary Committee wants Mueller’s testimony, independent of any legal frameworks or duties to superior officers, in order to properly contextualize the report. The issue is that Mueller does not wish to provide his testimony in a public forum, while the House Judiciary Committee feels it necessary that the public hear what Mueller has to say.

With Mueller, the big question that the House Judiciary Committee wants to answer is: does he think Trump is guilty of conspiracy or otherwise obstruction?

Crucial to uncovering the truth and determining the guilt or innocence regarding Obstruction of Justice is the testimony of McGahn. According to the Mueller Report, McGahn was a critical witness in Trump’s activities that are said to be obstructive. This includes efforts to fire Mueller, attempts to stop or sabotage the probe, and the activities leading up to and following the firing of former FBI Director James Comey.

As such, McGahn has much to offer in terms of a case for impeachment and indictment on grounds of obstruction. Seeing this, the House Judiciary Committee subpoenaed him. In the hearing that was supposed to take place, McGahn failed to be present, violating the subpoena, at the behest of the White House.

Steps Congress can take

In light of these direct affronts to the authority of Congress, there are two paths of actions that can be taken. Firstly, it can hold the White House in contempt. The Judiciary Committee has recently passed a resolution holding the Attorney General in contempt. The resolution would have to go to the full House, and considering the party makeup of the House, it is likely to pass.

Following that, the US Attorney would have to prosecute the Attorney General. The issue with this is that the US Attorney works under the Department of Justice. Effectively, in order to enforce a contempt resolution, the DOJ would have to prosecute itself (or, more precisely, its head).

The other option is for Congress to enforce the contempt resolution itself. This would involve the use of an archaic practice in which a Sergeant-at-arms is appointed to arrest the Attorney General and hold him in prison, following the normative criminal procedure. The issue with this is that the prison would have to be a federal prison. The prosecutor would have to be an attorney on behalf of the United States.

Because Federal attorneys and federal prisons fall under the jurisdiction of the DOJ, this becomes another issue of the DOJ having to prosecute itself.

Furthermore, as US Government Teacher Brad Seltzer pointed out, Barr’s prosecution in a federal court means that it is more easily appealed to a higher court all the way up to the Supreme Court — a sympathetic body to the Trump Administration.

“I have no idea what’s going to happen next,” Seltzer said when asked what might happen in this upcoming Constitutional crisis.

And so, a Constitutional crisis is about to occur, and the three branches of government are at a stalemate.

“There’s a delicate balancing act here in the separation of powers, and hopefully the Judicial branch will step in,” Seltzer said. “We saw that in Nixon with the tapes.”

The Nixon tapes were a similar piece of evidence that would have been detrimental to the administration. After a Congressional subpoena, the Nixon White House refused to hand over the tapes.

In the end, the Supreme Court stepped in and ordered the White House to release the tapes. Should the current Supreme Court follow the Court during the Nixon scandal, then the crises would be resolved. However, the SCOTUS is weighted conservative, and likely to be sympathetic to the Trump Administration.