“Since these materials are publicly cited and described in the Mueller report, there can be no question about the committee’s need for and right to this underlying evidence in order to independently evaluate the facts that Special Counsel Mueller uncovered and fulfill our constitutional duties,” Mr. Nadler wrote. “As the Mueller report makes clear, this need is amplified where, as here, department policy prohibits the indictment of a sitting president and instead relies on Congress to evaluate where constitutional remedies are appropriate.”
The Justice Department did not immediately respond to Mr. Nadler’s offer on Friday.
In a letter to Mr. Nadler on Wednesday, explaining why it would not meet his deadline, Stephen E. Boyd, an assistant attorney general, chastised Democrats for serving the department an “overbroad and extraordinarily burdensome” subpoena. He said compliance would pose a threat to the integrity of executive branch investigations, require the disclosure of millions of pages of documents and break longstanding department practice.
“Allowing your committee to use Justice Department investigative files to reinvestigate the same matters that the department has investigated and to second-guess decisions that have been made by the department would not only set a dangerous precedent, but would also have immediate negative consequences,” he wrote.
But Mr. Boyd left open the possibility of a compromise, writing that the department would consider “further accommodations in response to a properly focused and narrowed inquiry that is supported by a legitimate legislative purpose.”
Democrats argue that position is ultimately unsustainable for the department, particularly after it produced hundreds of thousands of documents about the F.B.I.’s investigation of Hillary Clinton’s email practices and the Russia investigation to House Republicans when they were in control of the chamber in the last Congress. Democrats opposed the department handing that material over at the time, arguing that it risked political interference in the ongoing special counsel investigation, but they now assert that it set a precedent the Justice Department must live with.
It is less likely that Mr. Barr will agree to the request by Democrats to unseal grand jury material. Mr. Barr has already declined to ask the federal judge overseeing that grand jury, Beryl A. Howell, to issue such an order.
The committee is likely to soon ask Judge Howell for such an order itself, although its position would be stronger if the Justice Department were with it. It remains unclear whether Mr. Barr would direct department lawyers merely to stay out of such litigation, or to actively oppose it — setting them up to file an appeal were Judge Howell to rule that the committee has a right to see the material.