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Norman Eisen, left, special oversight counsel to the House Judiciary Committee, sits next to House Judiciary Committee chairman Jerry Nadler, right, during a 2019 hearing on impeachment. Photo: Diego M. Radzinschi/ALM.

The Issues and Goals Democrats Have in Investigating Trump's Justice Department.

In less than two weeks, Attorney General William Barr will do something for the first time: Testify before the House Judiciary Committee.

Yep, it's finally happening. And Democrats on the panel have a ton of questions for him: Roger Stone's commutation and recommended sentence, the push to dismiss the criminal information against Michael Flynn, the firing of U.S. Attorney Geoffrey Berman, the force used against protesters in Lafayette Park, allegations over politically motivated antitrust investigations, his comments on mail-in voting, John Durham's review of the origins of the FBI probe into the Trump campaign's ties with Russia, Barr's handling of the release of the Mueller report … and that's not even all of it.

What's abundantly clear is, while House Democrats might believe Barr is dangerous and want him removed from office, they can't. The attempt to remove Trump from office earlier this year resulted in a near party-line vote in the Senate. The appetite to use that power again as expressed by some Judiciary Committee Democrats was formally snuffed out by Speaker Nancy Pelosi last month.

So, all oversight responsibilities aside, what's the point of investigating if there's no real endgame, no way to hold DOJ officials to account?

Sources have pointed to other potential outcomes from investigating. Some speculate about the possibility of an "October surprise" coming out of the Justice Department that could impact the November election. Barr has said Durham is focused on potential indictments, not a report, and that he doesn't believe the indictments would involve the presidential candidates.

"I think it's very important that Congress be ready to not only respond to any of that misconduct, but to prebut it," said Norm Eisen, a former special counsel for the House Judiciary Committee.

"Obviously they need to be ready for an October surprise from Barr and Trump," he added.

If Democrats are trying to argue that any forthcoming indictments from Trump and Barr's Justice Department can't be taken at face value, attempting to build a narrative that the department's political appointees can't be trusted could play a role in that. That effort is bolstered by recent whistleblower testimony from current DOJ attorneys before the committee, as they recounted what they believed to be political actions in the handling of Stone's sentencing memo and in conducting antitrust investigations.

And if the election results are disputed, including by Barr, that same evidence could be utilized in what would be an ugly brawl. Both Trump and Barr have spoken out against mail-in voting—which states could turn to if the pandemic poses too many risks for some to vote in-person come November—but have failed to provide substantive evidence to back up their warnings of potential voter fraud.

"The problem is not that there's not enough to cross examine him," Eisen said. "The problem is there's too much."

At the same time, House Judiciary faces a number of uphill battles in conducting the investigations. An obvious one is the number of topics that are now enveloped by their probe. That breadth alone makes it difficult to focus on one allegation at a time without risking others falling to the side.

That will also pose a challenge when Barr appears before the committee in a couple weeks. Neither Eisen nor fellow former Judiciary counsel Barry Berke will get to question him for an extended period of time as they did impeachment witnesses. Instead, members—24 Democrats and 16 Republicans—will get five minutes each, and not everyone will ask about the specific topics at hand. After all, many members use that time to deliver their own remarks rather than question witnesses.

And will Barr's testimony provide bombshell insights into the Justice Department's conduct?

"I suspect this won't be the kind of hearing with huge, shocking revelations or confessions, and that it'll instead be a hearing where each side scores its hits and moves on," said Joshua Matz, a partner with Kaplan Hecker & Fink who worked for the committee during the impeachment proceedings. He described the committee as featuring "brilliant questioners" with "a clear sense of mission and purpose," but added that Barr is "an exceedingly sophisticated actor" committed to "dodging questions about misconduct and malfeasance."

It's also unclear who else could feasibly be called in to testify before the committee. The Justice Department did allow the two current attorneys to appear, but limited their testimony to specific incidents, meaning they could not provide more in depth insight into the agency. Geoffrey Berman, the former U.S. Attorney for the Southern District of New York, also recently testified but declined to provide information about the office's investigations, citing an agreement with DOJ.

The administration has famously fought, sometimes in court, efforts to hand over documents or provide testimony in House Democrats' investigations. Barr has already been held in contempt once, over DOJ's refusal to provide documents on the failed attempt to add a citizenship question to the 2020 census.

Judiciary Committee and Oversight Committee Chairs Jerry Nadler and Carolyn Maloney have both said they want White House Counsel Pat Cipollone to brief them about Stone's commutation. If anything, those kinds of demands are more likely to spark future clashes than results.

Democrats may want answers, but that's not a guarantee with this administration. But raising questions? That they can keep doing. And we very well could walk out of Barr's testimony and head toward the November elections with more questions than answers.

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WIPL is known for having some of the most engaging and energizing keynote speakers attend to share their thoughts, experiences, war stories and tips on effective leadership. And this year is no exception. This year, we are grateful to welcome two remarkable women come and inspire us: Tina Tchen, the President and CEO of the "Times Up" Legal Defense Fund and Paula Boggs, Founder of Boggs Media LLC and Former Executive Vice President, General Counsel and Secretary, Law and Corporate Affairs at Starbucks from 2002-2012. READ MORE

Sen. Sheldon Whitehouse (D-RI). Photo: Diego M. Radzinschi / NLJ

Senate Democrats Sketch Out Next Moves For Countering Trump Judges

As the House deals with the Justice Department, Senate Democrats are focusing on the president's appointees to the federal judiciary.

This week, Sen. Sheldon Whitehouse and non-Judiciary Committee member Sen. Sherrod Brown sketched out what next steps Senate Democrats will take to further educate Americans about conservatives' "capture" of the courts, after a report they put out on the topic. Next up is talking about the real-life impacts of Trump nominee's decisions, like when voters have to wait in long lines to cast ballots due to court rulings that blocked access to other forms of voting, particularly during the pandemic.

"We have to make those stories poignant and relatable to people's lives," Whitehouse said during an event held by the American Constitution Society's Northeast Ohio Chapter. He said senators like Brown, who don't sit on the Judiciary Committee, will help play a role in getting that messaging out.

In other instances, the senators' hands are tied. When asked about the possibility of a U.S. Supreme Court vacancy ahead of the end of the Trump administration, Whitehouse acknowledged there's not much Democrats could do to stop it.

"If there were a parliamentary trick we could have pulled out of our back pockets, we would have pulled it by now," Whitehouse said. He said Democrats would have to be "hyper-engaged" in that effort, and warned that pushing through a Supreme Court nominee between now and the election could do "enormous damage to the court as an institution."

White House chief of staff Mark Meadows said if a seat on the Supreme Court were to open up, Trump would "quickly" tap a nominee. That's what this list is for, after all.

All of this played out in the context of Justice Ruth Bader Ginsburg's hospitalization this week for a suspected infection. She's home now and doing well, according to a court spokesperson. At least none of the justices were by that flaming car outside the court this week.