Thursday, special counsel Robert Mueller’s long-awaited report was released to Congress and the public—or at least parts of it were. The report that was publicly released contains significant redactions. Attorney General William Barr suggested that he would release a version with fewer redactions to certain members of Congress in a nonpublic setting. Assuming he expeditiously follows through on that promise, that is a good thing. But it’s not enough.
After all, Barr said that even the version he will give to those members of Congress would not contain grand jury materials, which he said “by law, cannot be shared.” But Congress deserves to see the entire, unredacted report, as well as the underlying grand jury materials that gave rise to it. Fortunately, Congress has several avenues for obtaining that information.
First, although government attorneys are generally prohibited from releasing grand jury materials under Federal Rule of Criminal Procedure 6(e), the rule allows “[a]n attorney for the government” to disclose grand jury material involving “foreign intelligence information … to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official’s duties.” There is a strong argument that at least members of the House and Senate intelligence committees are “national security officials” who should receive the information in the performance of their duties. Thus, grand jury materials implicating foreign intelligence should be confidentially released to at least the intelligence committees.
If Barr refuses to release such materials to the intelligence committees, they can issue subpoenas demanding that the Justice Department release information they believe was improperly or unnecessarily withheld, and if need be, the House of Representatives can sue in federal district court to enforce those subpoenas. That is precisely what the House successfully did during both the George W. Bush and Barack Obama administrations. Under Bush, the House sued to enforce subpoenas related to its investigation into the resignation of nine U.S. attorneys, while under Obama, the House did the same related to its investigation of the so-called Fast and Furious operation.
As one of us has previously explained, Congress can move quickly to issue those subpoenas, and it can expeditiously file suit if the Department of Justice does not comply. Moreover, Congress can ask the court to expedite proceedings to ensure that this litigation is resolved as quickly as possible.
Second, although Barr is correct that there may be some grand jury material the Department of Justice cannot release directly to Congress under grand jury secrecy rules, Congress can get that material, too. For that information, Congress can go directly to the district court judge who impaneled the Mueller grand jury and request that the judge release it. There are several legal arguments that the House can make in support of such release.
First, the House could ask the full U.S. Court of Appeals for the D.C. Circuit to overturn a recent decision limiting the district court’s inherent authority to release grand jury materials. In McKeever v. Barr, a panel of three judges on the D.C. Circuit held that district courts lack the inherent authority to release grand jury materials and may release them only pursuant to exceptions that are specifically listed in Rule 6(e)(3)(E). As we have previously written, that decision is wrong both because it ignores the long history of permitting courts to disclose grand jury materials based on their inherent authority, and because it contravenes a prior binding decision of the full D.C. Circuit. McKeever should be overturned by the full D.C. Circuit—which has the power to overrule a panel decision—and the district court should be able to release grand jury information based on its inherent authority to release important materials like these.
Second, even under McKeever, Congress can ask the district court to release grand jury materials for one of the reasons specifically enumerated in Rule 6(e)—specifically, Rule 6(e)(3)(E)(i), which permits courts to disclose grand jury material “preliminarily to or in connection with a judicial proceeding.” As the D.C. Circuit suggested in McKeever, a congressional impeachment inquiry qualifies as a judicial proceeding under Rule 6(e). That was the court’s explanation for why, 45 years ago—in a case called Haldeman v. Sirica—the full D.C. Circuit affirmed a district court decision to disclose grand jury materials regarding the Watergate investigation to the House Judiciary Committee, which was considering whether to impeach President Richard Nixon. Though Haldeman seemed to rely on the district court’s inherent authority, the D.C. Circuit concluded in McKeever that the Watergate-era court in fact relied on the “judicial proceeding” exception when it allowed disclosure of grand jury information. Thus, at the very least, a House committee’s impeachment investigation would fall within the Rule 6(e) exception and would provide a basis pursuant to the rules to release grand jury materials—even if the court lacks inherent authority to release them.
The notion that impeachment is a “judicial proceeding” accords with the text of the Constitution. Article III, Section 2 provides that “[t]he Trial of all Crimes, except in Cases of Impeachment; shall be by Jury,” indicating that the Framers believed “Impeachment” to be a “Trial” for “Crimes.” Moreover, in discussing impeachment, Article I, Section 3 of the Constitution uses other words that are typically associated with judicial proceedings: words like “Cases,” “try,” “convicted,” and “Judgment.” As one district court noted, “[t]he fact that senators rather than Article III judges decide [an impeachment] case does not make it any less judicial; it merely points to a jurisdictional choice made by the framers for political and historical reasons.”
To be sure, the House has not formally initiated impeachment proceedings against President Donald Trump, but Rule 6(e) speaks broadly, permitting disclosure “preliminarily to … a judicial proceeding.” The House can reasonably argue that its investigation of the president for potential collusion and obstruction of justice can be—indeed, could only be—an investigation preliminary to impeachment. The House need not say the magic word “impeachment” or open a formal impeachment investigation to request material under Rule 6(e) as part of its existing investigation into whether the president engaged in collusion or committed obstruction of justice.
In short, Congress has a number of different ways it can obtain the redacted portions of Mueller’s report, as well as the underlying grand jury materials. And the legislators don’t need to choose only one of these avenues. Pursuing all of them should ensure that Congress sees the full report and underlying information, and would allow Congress to fulfill its critical oversight responsibilities.
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