OP-ED: William Barr’s Radical New Attempt to Block the Full Mueller Report

Rule of Law

On Tuesday, the House Judiciary Committee continues its investigation of whether to recommend impeachment of President Donald Trump with testimony from former Trump campaign manager Corey Lewandowski. Keeping with its unprecedented obstruction of House oversight efforts, the White House has sought to place extraordinary limits on Lewandowski’s testimony and separately block two former White House aides from testifying on Tuesday. This latest blockade of information comes just a few days after another extraordinary effort to block the committee’s investigation in the courts. Fortunately, however, the recent attempt by the administration to prevent the committee from accessing certain evidence underlying special counsel Robert Mueller’s investigation should end in defeat—and hopefully soon.

On Friday, the administration argued in the U.S. District Court for the District of Columbia that Congress has no right to access portions of Mueller’s report on Russian attempts to interfere in the 2016 election—and on Trump’s efforts at obstructing that investigation—that had been redacted because they concern grand jury matters. The administration’s arguments are at odds not only with the law, but also with the executive branch’s own past positions.

It is true, as Attorney General William Barr has repeatedly noted, that Federal Rule of Criminal Procedure 6(e) generally requires that grand jury matters be kept secret. However, the rule includes several exceptions that permit the District Court to release such materials where appropriate, including “preliminarily to or in connection with a judicial proceeding.” Citing that provision, in July, the House Judiciary Committee requested that the District Court overseeing the Mueller grand jury release several portions of the Mueller report that had been redacted under Rule 6(e).

The House Judiciary Committee’s request for these grand jury materials is also consistent with centuries of precedent.

Because impeachment is a judicial proceeding, the District Court plainly has authority under Rule 6(e) to grant the House’s request. Although impeachment may not take place in a courtroom, Congress acts as a judicial forum when it decides impeachment. The House functions as the equivalent of a grand jury that decides whether to bring impeachment charges, and the Senate as a tribunal—over which the chief justice of the United States presides—that decides whether to remove the official from office. Article I, Section 3 of the Constitution specifically uses the language of judicial proceedings when referring to impeachment, stating that “the Senate shall have the sole Power to try all Impeachments,” that “no Person shall be convicted without the Concurrence of two thirds of the Members present,” and that “judgment in Cases of Impeachment shall not extend further than to removal from Office.” Further, Article III, Section 2 says that “the Trial of all Crimes, except in Cases of Impeachment; shall be by Jury,” implying that impeachment is a type of “trial” for “crimes.”

For that reason, the U.S. Court of Appeals for the District of Columbia Circuit—the appellate court in Washington—has on two separate occasions confirmed that a House impeachment investigation qualifies as “preliminar[y] to a judicial proceeding” under Rule 6(e). First, 45 years ago, in a case called Haldeman v. Sirica, the full District of Columbia Circuit affirmed a court decision to disclose grand jury materials regarding the Watergate investigation to the House Judiciary Committee, which was considering whether or not to impeach President Richard Nixon. Second, just this year, in a case called McKeever v. Barr, the District of Columbia Circuit explained that, in its view, a congressional impeachment inquiry qualifies as a judicial proceeding under Rule 6(e), offering that this was the basis for the court’s previous decision in Haldeman.

The House Judiciary Committee’s request for these grand jury materials is also consistent with centuries of precedent. As early as 1811, a grand jury in the Mississippi Territory forwarded to the House of Representatives its presentment specifying charges against federal territorial Judge Harry Toulmin, which set in motion a House inquiry regarding whether or not to initiate formal impeachment proceedings.

More recently, the House has routinely received grand jury materials in similar circumstances. In addition to the Watergate episode, a federal court in Miami in 1987 permitted the disclosure of the record of a grand jury that indicted Judge Alcee Hastings to the House Judiciary Committee to further its impeachment investigation of him for soliciting a bribe to influence a judicial decision. Similarly, in 2010, a Louisiana district court approved the release of grand jury materials to the House for use in its impeachment investigation of Judge G. Thomas Porteous Jr.

Importantly, in each of these cases, the Department of Justice consented to the release of the grand jury materials to Congress to further Congress’ impeachment investigations of Nixon, Judge Hastings, and Judge Porteous. But not this Department of Justice, which appears to be acting as Trump’s personal law firm in its efforts to stymie congressional investigations. Instead, in Friday’s filing, the DOJ offered a number of reasons why the District Court shouldn’t grant the House’s request. None of them has any merit.

First, the department argues that a congressional impeachment investigation is never “preliminar[y] to a judicial proceeding” under Rule 6(e). That claim is directly at odds with the District of Columbia Circuit decision from this year, which is binding on the court considering the House’s request. And stunningly, this argument suggests that in the department’s view, the Watergate grand jury materials should never have been released to Congress, despite the fact that both Nixon (through his personal lawyers) and the Department of Justice consented to their release.

Second, the department argues that the committee’s investigation isn’t actually preliminary to impeachment because the committee’s investigation could result in many possible outcomes—like legislation or further investigations—only one of which is impeachment. But as the House Judiciary Committee has clearly stated, it is assessing “whether to approve articles of impeachment with respect to the President,” and that should be the end of the matter as far as the court is concerned. Indeed, Jefferson’s Manual—Thomas Jefferson’s book of parliamentary procedure—actually requires that the House Judiciary Committee consider impeachment following an impeachment resolution introduced by a member, which is precisely what has happened in this Congress. Of course, the House could decline to approve articles of impeachment, but the point is that these materials will help it determine what path to take.

Third, the department argues that withholding this information from the House would not prevent the carrying out of justice. However, in declining to indict the president for obstruction of justice, the Mueller report explicitly pointed to alternative “constitutional processes for addressing presidential misconduct”—referring, of course, to impeachment. It would be an obvious miscarriage of justice if Congress were prevented from viewing information plainly relevant to its impeachment investigation simply because that evidence was also presented to a grand jury. As the court that released the Watergate grand jury materials explained, “It would be difficult to conceive of a more compelling need … for an unswervingly fair inquiry based on all pertinent information” than a presidential impeachment investigation.

Finally, the department argues that these materials should not be released because there are other ongoing and pending criminal and national security matters that relate to the Mueller grand jury’s deliberations. But the need for secrecy is lessened where, as here, the committee seeks disclosure only to a limited number of authorized individuals, and the committee has explained that it will seek the Senate Select Intelligence Committee’s assistance in ensuring the materials’ secrecy.

In short, there is no good reason why the House should be prohibited from viewing these redacted passages from the Mueller report, along with all underlying investigative materials, which it also seeks. In the past, the Department of Justice has consented to similar requests, and its failure to do so here is just its latest effort to stonewall any meaningful investigation of the president. Fortunately, the District Court has lots of good reasons to reject its arguments.