Opinion The House impeachment inquiry loses another round — and yes, that's still going on

18:12  22 may  2020
18:12  22 may  2020 Source:   thehill.com

Real collusion

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Jerrold Nadler wearing glasses and looking at the camera: The House impeachment inquiry loses another round — and yes, that's still going on © Greg Nash The House impeachment inquiry loses another round — and yes, that's still going on

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

At the urging of the Department of Justice (DOJ), the Supreme Court has granted a stay, at least temporarily blocking disclosure to the House Judiciary Committee of grand jury materials from the Mueller probe.

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The committee, chaired by Rep. Jerry Nadler (D-N.Y.), represented to the justices that these materials - transcripts of testimony and other evidence - are vital to its continuing inquiry into whether President Trump should be impeached.

Yes, that's still going on.

As we noted back in those footloose pre-pandemic days of the Ukraine kerfuffle, the fact that the House filed impeachment articles against the president meant neither that the House impeachment push was over (it never will be over, as long as Trump is in the White House), nor that the House would necessarily refrain from filing new impeachment articles - or even the same impeachment articles, there being no double-jeopardy bar against successive impeachments for the same alleged offenses.

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That last point is not incidental. Double jeopardy does not apply to impeachment because it is a political proceeding, not a judicial proceeding. That is, House impeachment inquiries and Senate impeachment trials are congressional matters focused solely on the removal of political power. They are not criminal court cases to determine guilt and potential imprisonment.

The distinction is significant to the House committee's lawsuit, seeking to enforce a subpoena it issued last summer for the grand jury materials. The DOJ has countered that:

  • Grand jury materials are made secret by statute, and a court thus has no authority to order their disclosure unless there is an express exception to secrecy in the rule that governs federal grand jury matters.
  • That rule, Rule 6(e) of the Federal Rules of Criminal Procedure, does not expressly permit disclosure to Congress in connection with an impeachment proceeding; instead, disclosure is permitted only in connection with "a judicial proceeding."

For these propositions, the DOJ relied on a recent decision of the U.S. Court of Appeals for the D.C. Circuit, McKeever v. Barr. Yet, as I noted in The Hill in December, the DOJ's argument was rejected by Beryl Howell, the chief judge of the district court in Washington who was appointed to the bench by President Obama, after a lengthy stint as top Judiciary Committee adviser to Sen. Patrick Leahy (D-Vt.).

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Chief Judge Howell ruled that a congressional impeachment inquiry is actually a "judicial proceeding." In March, a divided panel of the D.C. Circuit upheld the lower court's ruling. With a deadline for surrendering the materials looming, the DOJ asked the Supreme Court to suspend the matter until it could seek the justices' review of the D.C. Circuit's decision. The DOJ acknowledged that this would entail delay. Yet, it reasoned that it has a good chance to prevail on the merits; by contrast, disclosing the grand jury materials before a full Supreme Court review would moot the case (since secrecy, the linchpin of the DOJ's position, already would have been lost).

The DOJ does indeed have a stronger hand in the High Court. Both Chief Judge Howell and the appellate court were required to follow a binding D.C. Circuit precedent, Haldeman v. Sirica. In that famous Watergate case, the appellate court upheld Judge John Sirica's order that a grand jury report be disclosed to the House Judiciary Committee. Judge Sirica had reasoned that an impeachment inquiry was analogous enough to a grand jury investigation to be deemed a judicial proceeding and, in any event, that he had inherent authority to order disclosure, even if it did not comport precisely with the rule. Not incidentally, the DOJ supported Sirica's decision to transmit the grand jury report to Congress.

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Almost a half-century later, the posture is markedly different. The House is on a fishing expedition now, rather than seeking a roadmap to proof of concrete crimes. We are in a post-impeachment phase, not building to that crescendo. The DOJ is opposed to disclosure, not endorsing the congressional committee's inquiry. And, in no small part thanks to the storied career of Justice Antonin Scalia, there is persuasive force to the contentions that the text of a statute means what it says, and that courts do not have bottomless reservoirs of power to rewrite them whenever they decide the "interests of justice" call for it.

On that score, the DOJ's argument is not limited to the salient point that impeachment is fundamentally not a judicial proceeding. It also points out that, to pull off the fiction, the D.C. Circuit had to rewrite Rule 6(e).

The rule, for example, empowers courts to impose conditions on the release of grand jury information and to punish defiance by contempt. That would crash into Congress's plenary authority over its own proceedings, as well as its Speech or Debate Clause immunity. Furthermore, in the normal Rule 6(e) situation, when a party (usually a prosecuting authority) seeks grand jury disclosure for an actual judicial proceeding, that party must demonstrate a particular need, which typically relates to the theory of prosecution under criminal statutes. To the contrary, impeachment proceedings are not confined to criminal prosecution, and the court has no authority to instruct Congress about what is relevant or material to an impeachment inquiry. The D.C. Circuit panel majority simply disregarded these incongruities.

Macron party loses ground, but not control, amid defections

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There remains, finally, an issue I have highlighted since the beginning of this controversy. Rule 6(e) is statutory. If lawmakers believed it was essential for Congress itself to have access to grand jury materials generated by a special counsel investigation such as Robert Mueller's, they could simply amend the rule to provide it. Why should the Supreme Court engage in impermissible judicial legislating when Congress itself has the power to rewrite the rule?

The Supreme Court's ruling gives the DOJ until June 1 to file its petition for review of the D.C. Circuit's decision. If, as expected, the DOJ files on time and the court grants the petition, the House Judiciary Committee would be blocked from access to the Mueller grand jury materials until the justices decide the case. There is no telling, at the moment, if that would happen on a fast track or be put over to the court's next term, which begins in October.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is "Ball of Collusion." Follow him on Twitter @AndrewCMcCarthy.

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