Jurisprudence

Congress Should Sue for the Mueller Materials Today

House Judiciary Chairman Rep. Jerrold Nadler (D-NY) participates in a House Judiciary Committee markup vote on a resolution to issue a subpoena to the Justice Department to receive the full unredacted Mueller report, on Capitol Hill April 3, 2019 in Washington, DC. The committee voted 24-17 and passed the resolution in favor of a subpoena.
House Judiciary Committee Chairman Rep. Jerrold Nadler participates in a markup vote on a resolution to issue a subpoena to the Justice Department to receive the full unredacted Mueller report on Wednesday in Washington.
Mark Wilson/Getty Images

This week, the House Judiciary Committee authorized a subpoena to require Attorney General William Barr to turn over special counsel Robert Mueller’s full report of his investigation. Congress deserves that report. Barr’s “summary” of the report raised more questions than it answered, and both Congress and the American people should know what Mueller actually concluded as well as the findings that supported those conclusions.

But the Judiciary Committee’s authorization of a subpoena marks just the beginning of Congress’ fight for this information, not the end. Indeed, as prior subpoena fights suggest, it could take a long time for Congress to obtain the report and the other information it seeks.

Fortunately, for both Congress and the American people, there are at least three things Congress can do to help ensure that it, and the American people, receive this information sooner rather than later.

First, sue expeditiously. In the two recent congressional subpoena fights that took place during the Bush and Obama administrations, the cases took a long time to make their way through the courts. But they took an especially long time even to get there. It took Congress roughly a year after it authorized subpoenas in one case, and roughly 10 months in the other, for Congress to file suit to enforce them.

Why the delay? In both cases, the committees were presumably negotiating with the White House to see if there was some way to avoid going to court. After all, as the court hearing one of those cases explained, “the optimal outcome of a dispute of this nature would involve the parties crafting their own solution without judicial intervention.”

But though an out-of-court resolution may be optimal in theory, that doesn’t mean a court can’t resolve this sort of dispute. As that same court noted, it is not the role of the courts to address “who negotiated properly or fairly” or “whether any accommodation offered was ‘substantial’ or merely superficial”; the role of the court was to address the legal questions presented. That is why the court concluded that refusing to decide the case on the ground that the parties should “work out their difficulties” would have, by default (and improperly), “designat[ed] the executive as the victor.”

In any event, here Congress has already done more than enough to demonstrate that it is trying to work with the White House, and it is the White House that is not acting in good faith. The day after Barr released his initial letter about the Mueller report, the chairs of six House committees formally requested the report and underlying materials. They also urged Barr “to begin the process of consultation with [them] immediately” if he believed “applicable laws limit[ed] [his] ability to comply” so that “shared parameters for resolving those issues without delay” could be established. Days later, those same committee chairs again made clear their desire “to avoid resort[ing] to compulsory process” and urged Barr to “engage in an immediate consultation” and to “seek leave from the district court to produce [grand jury] materials to Congress.” Barr hasn’t demonstrated that he is doing all he can to comply with these reasonable requests.

Barr’s actions mirror the actions of the White House that appointed him. Rather than engage in good faith with congressional oversight efforts, President Donald Trump has bemoaned “[p]residential [h]arassment.” Indeed, the White House has ignored more than a dozen letters from the chairs of House committees requesting documents. As Rep. Elijah Cummings, chair of the House Oversight and Reform Committee, put it, “the White House is engaged in an unprecedented level of stonewalling, delay and obstruction.”

Even if Congress thought it could engage in more negotiating with the White House, it can continue to do that after it files suit. As a decision in one of those earlier cases made clear, “parties negotiate and even resolve their disputes quite often notwithstanding the pendency of a court case.” In short, Congress should not waste any time in initiating what could end up being a lengthy court process.

The second thing the relevant committees should do is ask the court to expedite proceedings. Even after a party goes to court, the wheels of justice do not always move quickly. But Congress can ask the court to expedite proceedings. A provision of federal law expressly provides that “the court shall expedite the consideration of any action … if good cause therefor is shown.”

“Good cause,” it goes on to explain, “is shown if a right under the Constitution of the United States … would be maintained in a factual context that indicates that a request for expedited consideration has merit.”

Here, Congress is seeking to exercise its oversight authority—an authority that has deep roots in our political and legal tradition and is an essential component of our nation’s system of checks and balances. In particular, Congress is exercising that authority to determine whether the president was involved in foreign interference in the most recent presidential election or obstructed efforts to investigate that interference—information that could be relevant to Congress’ impeachment authority. Given the importance of the issues at stake—and the many reasons why this litigation should be resolved well in advance of the next election—it won’t be difficult to argue that “good cause” exists here.

The final thing these committees urgently need to do is pursue grand jury materials directly. As I’ve written previously, Congress doesn’t need Barr to hand over the underlying grand jury materials. For those, it can go straight to the district court judge who impaneled the Mueller grand jury, because that judge—Chief Judge Beryl Howell—has authority to disclose those materials. Indeed, there is strong historical precedent for the idea that grand jury materials should be released when they would facilitate an ongoing congressional investigation into the president. And Congress can pursue this avenue for information at the same time that it sues to enforce its subpoenas. Such action may not get Congress everything, but it can get it quite a lot.

In sum, there’s no reason why the fight to get information about the Mueller investigation should take years. And indeed, given what’s at stake here, there’s every reason for Congress to do what it can to ensure that it doesn’t.