Last Friday, in a dense, 75-page opinion, federal judge Beryl Howell ordered the Department of Justice to provide the House Judiciary Committee the redacted portions of the Robert Mueller report, along with the secret grand jury transcripts and exhibits the special counsel cited. She concluded that it’s kosher to give secret grand jury information to an impeachment proceeding even though there has been no vote to open an actual impeachment proceeding and federal rules generally bar grand jury information from being released. Howell’s opinion was pure politics—just as the House’s “impeachment inquiry” continues to be.
It wasn’t the substance of Howell’s analysis that proved problematic, however. No, the Barack Obama appointee skillfully assembled the controlling law and carefully analyzed the available precedent. But from the opening paragraph of her opinion to her closing command that the U.S. Department of Justice “provide promptly, by October 30, 2019,” the House Judiciary Committee with the materials, Howell proved herself to be but another cog in the political machinery that seeks to subvert the populace’s will that gave the country Donald Trump as president.
“In March 2019, Special Counsel Robert S. Mueller III ended his 22-month investigation and issued a two-volume report summarizing his investigative findings and declining either to exonerate the President from having committed a crime or to decide that he did,” Howell opened her decision. Then, quickly pivoting to the Democratic talking point that emerged once the reality of “no Russia collusion” took hold, the federal judge pronounced that because “the Special Counsel explained that bringing federal criminal charges against the President would potentially preempt constitutional processes for addressing presidential,” Mueller had “signaled his view that Congress, as the federal branch of government tasked with presidential impeachment duty under the U .S. Constitution, was the appropriate body to resume where the Special Counsel left off.”
Howell’s opener also serves as a good reminder that Mueller, or Andrew Weissmann pulling his strings, crafted a political document designed to drag the president during the final two years of his first term. After this, Judge Howell spent ten-plus pages culling passages from the special counsel report—details irrelevant to the issue at hand, but perfect for scoring political points—before addressing the legal question presented: whether the federal rule governing the secrecy of grand jury materials permits the DOJ to disclose the requested information to the House Judiciary Committee.
Rule 6(e) of the Federal Rules of Criminal Procedures controls and provides that, absent an exception, a government attorney “must not disclose a matter occurring before the grand jury.” As the D.C. Circuit recently made clear, the “text of the Rule” prevents disclosure of matters “before the grand jury unless these rules provide otherwise.” Thus, district court judges, such as Judge Howell, lack the authority, outside the exceptions listed in Rule 6(e), to permit the disclosure of secret grand jury proceedings.
In seeking disclosure of the Mueller redactions and grand jury materials, the House Judiciary Committee argued that the exception set forth in Rule 6(e)(3)(E)(i) applies. That exception provides that a court may authorize the disclosure “of a grand-jury matter” that is “preliminarily to or in connection with a judicial proceeding.” And, according to the House Judiciary Committee, an impeachment trial in the Senate qualifies as a “judicial proceeding.”
A Senate Trial Is a ‘Judicial Proceeding,’ But —
In a thorough analysis, Judge Howell agrees with the House Judiciary Committee and concludes that an impeachment trial in the Senate is a “judicial proceeding” within the meaning of Rule 6(e)’s. While the DOJ maintained that congressional proceedings do not qualify as a “judicial proceeding,” Judge Howell rejected that argument. At least in this respect, Judge Howell has the better position.
As she details, the Constitution “uses judicial terms to refer to impeachment trials in three separate instances in the sixth clause of its third section, stating that the Senate is granted ‘the sole Power to try all Impeachments;’ ‘when the President of the United States is tried, the Chief Justice shall preside;’ ‘and no person shall be convicted without the concurrence of two thirds of the Members present.’” The next clause, Judge Howell notes, “continues the theme: ‘Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office.’”
The plain language of our Constitution frames an impeachment trial in the Senate as a “judicial proceeding.” As Judge Howell also highlights, historical practice, the Federalist Papers, and controlling precedent all support this conclusion.
But Is There a Senate Trial? No
But that does not end the inquiry, because there is no ongoing Senate impeachment trial. So, the question is whether the requested grand jury material is “preliminarily to” such a possible future judicial proceeding. The House Judiciary Committee argued that because it is conducting an “impeachment inquiry,” the grand jury material is “preliminarily to” a Senate impeachment trial.
Judge Howell agreed, pointing to, among other things, House Judiciary Chair Jerrold Nadler’s July 11, 2019, memorandum explaining that the committee is determining “whether the Committee should recommend articles of impeachment against the President.” Judge Howell also highlighted House Speaker Nancy Pelosi’s September 24, 2019, statement that the full House is “moving forward with an official impeachment inquiry.”
Pelosi, Judge Howell noted, had said that for the past several months the House has been investigating whether to “exercise its full Article I powers,” including “of the utmost gravity, approval of articles of impeachment,” and then “directed” six committees, including the House Judiciary Committee, to “proceed with their investigation under that umbrella of impeachment inquiry.”
Because there is a dearth of case law interpreting the meaning Rule 6(e)’s “preliminarily to” exception, Judge Howell had free reign to reach her preferred conclusion that the grand jury materials must be turned over. Yet, no matter what Pelosi and the House leadership brand the kangaroo proceedings taking place behind closed doors, the reality remains that they are so far removed from a possible Senate impeachment trial that they cannot reasonably be classified as “preliminarily to” such possible proceedings.
No Showing of a ‘Particularized Need’
Further, even if Judge Howell had properly concluded that the House activities are “preliminarily to” a “judicial proceeding,” that also does not end the inquiry because the Supreme Court has made clear that there must be “a strong showing of particularized need for grand jury materials before disclosure will be permitted.” Here, Judge Howell’s analysis exposes both the folly of her opinion and of the House’s supposed “impeachment inquiry.”
“The ‘particularized need’ standard,” Judge Howell explained, “requires a showing that the requested materials are ‘needed to avoid a possible injustice in another judicial proceedings.” She then notes the House Judiciary Committee asserted “that it needs the material to conduct a fair impeachment investigation based on all relevant facts.”
This need, Judge Howell reasoned, satisfies the “particularized need for grand jury materials.” Here, the D.C. federal judge relied on case law involving impeachment proceedings for federal judges and former President Richard Nixon, which spoke of “the interest in conducting a full and fair impeachment inquiry [as] sufficiently particularized.”
But in this case, there is no “particularized need” because there is no “full and fair impeachment inquiry.” There has been no vote to open an impeachment inquiry, no established procedures for an inquiry, and no defined scope for an inquiry. Democrats have denied Republicans the right to call or subpoena witnesses.
Nor can the public, or even the House members who are not part of the relevant committees, read transcripts from the secret proceedings. The Democrat-controlled House is also denying the president the right to have counsel present during the proceedings, to make his position known either orally or in writing, to present or receive documents or materials, and to present or cross-examine witnesses.
Access to the grand jury materials won’t transform the House’s proceedings into a “full and fair impeachment inquiry”—it will just give the Democrats more information to selectively leak to the press.
When the Department of Justice appeals Judge Howell’s decision to the D.C. Circuit Court of Appeals—a near certainty—the “preliminarily to” “judicial proceeding” question will likely be the main focus. But really, there’s no need to look beyond the closed doors of the committees to conclude that the Democrats aren’t requesting the grand jury materials to avoid an injustice—but to avoid a reelection.