*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
In re APPLICATION OF THE
COMMITTEE ON THE JUDICIARY, U.S.
HOUSE OF REPRESENTATIVES, FOR AN Grand Jury Action No. 19-48 (BAH) ORDER AUTHORIZING THE RELEASE
OF CERTAIN GRAND JURY MATERIALS Chief Judge Beryl A. Howell MEMORANDUM OPINION GRANTING THE APPLICATION OF THE COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES
Table of Contents
I. BACKGROUND ......................................................................................................................... 3
A. The Special Counsel’s Investigation ....................................................................................... 3 B. Release of the Mueller Report .............................................................................................. 13 C. The Instant Proceeding ......................................................................................................... 16 II. LEGAL STANDARD ................................................................................................................ 18 III. DISCUSSION ........................................................................................................................... 19
A. Rule 6(e)’s “Judicial Proceeding” Requirement is Satisfied Because an Impeachment Trial is Such a Proceeding ............................................................................................................... 21 1. The Term “Judicial Proceeding” in Rule 6(e) Has a Broad Meaning ..................................... 22 2. An Impeachment Trial is Judicial in Nature ............................................................................ 26 3. Historical Practice Before Enactment of Rule 6(e) Informs Interpretation of that Rule ......... 34 4. Binding D.C. Circuit Precedent Forecloses Any Conclusion Other Than That an Impeachment Trial is a “Judicial Proceeding” ........................................................................ 37 B. HJC’s Consideration of Articles of Impeachment is “Preliminarily To” an Impeachment Trial . 44 1. Governing Legal Principles Demonstrate That House Proceedings Can be “Preliminarily To” a Senate Impeachment Trial .................................................................................................... 44 2. HJC’s Primary Purpose is to Determine Whether to Recommend Articles of Impeachment . 47 a. DOJ’s Proposed “Preliminarily To” Test is Contrary to Baggot ...................................... 47 b. No House “Impeachment Inquiry” Resolution is Required .............................................. 49 c. The Record of House and HJC Impeachment Activities Here Meets the “Preliminarily To” Test ............................................................................................................................ 55 3. Requiring More Than the Current Showing by HJC, as DOJ Demands, Would Improperly Intrude on Article I Powers Granted to House of Representatives .......................................... 58 4. DOJ’s Remaining Objections are Unpersuasive ..................................................................... 61 C. HJC Has a “Particularized Need” for the Requested Materials ................................................ 62 1. Disclosure is Necessary to Avoid Possible Injustice ............................................................... 64 2. The Need for Disclosure Outweighs the Need for Continued Secrecy ................................... 71 3. Scope of Disclosure Authorized .............................................................................................. 74 IV. CONCLUSION ......................................................................................................................... 74
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. See generally Special Counsel Robert S. Mueller, III, U.S. Dep’t of Justice, Report On The Investigation Into Russian Interference In The 2016 Presidential Election (“Mueller Report”) (Mar. 2019), ECF Nos. 20-8, 20-9. The Special Counsel explained that bringing federal criminal charges against the President would “potentially preempt constitutional processes for addressing presidential misconduct.” Id . at II-1. With this statement, the Special Counsel 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.
The Speaker of the House of Representatives has announced an official impeachment inquiry, and the House Judiciary Committee (“HJC”), in exercising Congress’s “sole Power of Impeachment,” U.S. C ONST . art. I, § 2, cl. 5, is reviewing the evidence set out in the Mueller Report. As part of this due diligence, HJC is gathering and assessing all relevant evidence, but one critical subset of information is currently off limits to HJC: information in and underlying the Mueller Report that was presented to a grand jury and withheld from Congress by the Attorney General.
The Department of Justice (“DOJ”) claims that existing law bars disclosure to the Congress of grand jury information. See DOJ’s Resp. to App. of HJC for an Order Authorizing Release of Certain Grand Jury Materials (“DOJ Resp.”), ECF No. 20. DOJ is wrong. In carrying out the weighty constitutional duty of determining whether impeachment of the President is warranted, Congress need not redo the nearly two years of effort spent on the Special Counsel’s investigation, nor risk being misled by witnesses, who may have provided information *3 to the grand jury and the Special Counsel that varies from what they tell HJC. As explained in more detail below, HJC’s application for an order authorizing the release to HJC of certain grand jury materials related to the Special Counsel investigation is granted. See HJC’s App. for an Order Authorizing the Release of Certain Grand Jury Materials (“HJC App.”), ECF No. 1.
I. BACKGROUND
What follows begins with a brief review of the initiation of the Special Counsel’s investigation, the key findings in the Mueller Report and the grand jury secrecy redactions embedded therein, as well as the significant gaps in the Special Counsel’s investigation that contributed to the Special Counsel assessment that “[t]he evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgement.” Mueller Report at II-8. Next reviewed is Congress’s response to the release of the public redacted version of the Mueller Report and ensuing—and ultimately unsuccessful—negotiations with DOJ to obtain the full Report and related investigative materials, leading HJC to file the instant application, pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(i).
A. The Special Counsel’s Investigation
On May 17, 2017, then-Deputy Attorney General (“DAG”) Rod J. Rosenstein appointed Robert S. Mueller III to serve as Special Counsel for DOJ “to investigate Russian interference with the 2016 presidential election and related matters.” U.S. Dep’t of Justice, Office of the Deputy Attorney General, Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (“Appointment *4 Order”) (May 17, 2017) (capitalization altered). Prior to the Special Counsel’s appointment, the Federal Bureau of Investigation (“FBI”) had already initiated “an investigation into whether individuals associated with the Trump Campaign [had] coordinat[ed] with the Russian government” to interfere in the 2016 presidential election. Mueller Report at I-1. The order authorizing the Special Counsel’s appointment thus had the effect of transferring the ongoing FBI investigation to his office. See Appointment Order ¶ b (authorizing the Special Counsel “to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before [Congress] on March 20, 2017”). The Special Counsel was also granted “jurisdiction to investigate matters that arose directly from the FBI’s Russia investigation, including whether the President had obstructed justice in connection with Russia-related investigations” and “potentially obstructive acts related to the Special Counsel’s investigation itself.” Mueller Report at II-1. Pursuant to this grant of authority—and upon receiving evidence “relating to potential issues of obstruction of justice involving the President”—the Special Counsel “determined that there was a sufficient factual and legal basis to further investigate . . . the President.” at II-12.
In compliance with the DOJ regulations authorizing his appointment, upon completion of his investigation the Special Counsel issued a confidential report to the Attorney General “explaining the prosecution or declination decisions [he] reached.” Id . at I-1 (quoting 28 C.F.R § 600.8(c)). That Report laid out the Special Counsel’s findings in two volumes, totaling 448 pages. Both HJC and DOJ point to the contents of the Report as highly relevant to resolving the *5 current legal dispute. Indeed, DOJ submitted the public redacted version of the Mueller Report as exhibits to support its arguments. See DOJ’s Resp., Exs. 8 (Volume I), 9 (Volume II), ECF Nos. 20-8, 20-9. Therefore, a recounting of some of the key events chronicled in and conclusions (or lack thereof) reached by the Special Counsel in the Mueller Report is in order.
Volume I of the Mueller Report “describe[s] the factual results of the Special Counsel’s investigation of Russia’s interference in the 2016 presidential election.” Mueller Report at I-2. The Special Counsel concluded that “[t]he Russian government interfered in the 2016 presidential election in sweeping and systematic fashion,” “principally through two operations.” Id . at I-1. “First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then released stolen documents.” Id. Russia hacked and stole “hundreds of thousands of documents,” id. at I-4, from the Democratic National Committee, the Democratic Campaign Committee, and the Clinton Campaign, and then disseminated those documents through fictitious online personas and through the website WikiLeaks in order to influence the outcome of the 2016 presidential election. Id. at I-4, 38, 41, 48, 58.
Volume I of the Mueller Report also details evidence of “links between the Russian government and individuals associated with the Trump [2016 Presidential] Campaign.” Id. at I- 2–3. According to the Special Counsel, “the [Trump] Campaign expected it would benefit electorally from information stolen and released through Russian efforts,” and the links between the Russian government and the Trump Campaign were “numerous.” at I-1–2. For instance, a meeting occurred on June 9, 2016 at Trump Tower in New York City, between a Russian *6 lawyer and senior Trump Campaign officials Donald Trump Jr., Jared Kushner, and then- campaign manager Paul Manafort, triggered by information provided to those campaign officials that the Russian lawyer would deliver “official documents and information that would incriminate Hillary [Clinton].” Id. at I-6 (internal quotation marks omitted). Additionally, the Mueller Report documents connections between Ukraine and Manafort, who had previously “work[ed] for a pro-Russian regime in Ukraine.” Id. at I-129. Among other things, the Special Counsel determined that “during the campaign” Manafort—through “Rick Gates, his deputy on the Campaign”—“periodically sent” internal Trump Campaign “polling data” to Konstantin Kilimnik, Manafort’s long-time business associate in Ukraine with alleged ties to Russian intelligence, with the expectation that Kilimnik would “share that information with others in Ukraine.” Id. The Mueller Report further recounts evidence suggesting that then-candidate Trump may have received advance information about Russia’s interference activities, stating:
Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump [redacted] . Manafort also [redacted] wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch [redacted] about future WikiLeaks releases.
According to Gates, by the late summer of 2016, the Trump campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted] while Trump and Gates were driving to LaGuardia Airport. [Redacted] , shortly after the call candidate Trump told Gates that more releases of damaging information would be coming. at I-53–54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206
redacted due to grand jury secrecy).
The public version of Volume I contains over 240 redactions on the basis of grand jury secrecy. These redactions occur in parts of the Mueller Report that include discussion of the Trump Tower Meeting, then-candidate Trump’s discussion with associates about releases of hacked documents, and Manafort’s contacts with Kilimnik. See id. at I-54 & n.206, 111–12, 117, 120, 136–37, 140, 143.
Volume II of the Mueller Report summarizes the “obstruction investigation,” which “focused on a series of actions by the President that related to the Russian-interference investigations, including the President’s conduct towards the law enforcement officials overseeing the investigations and the witnesses to relevant events.” Id. at II-3 (capitalization altered). The Special Counsel determined that “the President of the United States took a variety of actions towards the ongoing [Russia-related investigations] . . . that raised questions about whether he had obstructed justice.” Id. at II-1. For example, in the summer of 2017 after news reports about the Trump Tower Meeting, President Trump “directed aides not to publicly disclose the emails setting up the June 9 meeting” and “edited a press statement for Trump Jr.,” eliminating the portion “that acknowledged that the meeting was with ‘an individual who [Trump Jr.] was told might have information helpful to the campaign,’” even while President Trump’s personal attorney “repeatedly denied the President had played any role” in Trump Jr.’s statement. at II-5 (alteration in original).
In another instance involving potential witness tampering, the Mueller Report examined the events leading to former Trump Organization executive and attorney Michael Cohen *8 providing false testimony to Congress, in 2017, about a deal to build a Trump Tower in Moscow, Russia. Id. at II-6. While Cohen was preparing to give that false testimony the President’s personal counsel told Cohen, according to Cohen, that “Cohen should ‘stay on message’ and not contradict the President.” Then, in April 2018, after Cohen became the subject of a criminal investigation and the FBI had searched Cohen’s home and office, the President stated publicly “that Cohen would not ‘flip’” and “contacted [Cohen] directly to tell him to ‘stay strong,’” at the same time that President Trump’s personal counsel “discussed pardons” with Cohen. Id.
As DOJ points out, DOJ Resp. at 32 n.19, the public version of Volume II contains some, but far fewer, redactions on the basis of grand jury secrecy than does the public version of Volume I. Again, the Mueller Report recounts an incident when then-candidate Trump spoke to associates indicating that he may have had advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks’s July 22, 2016 release of hacked documents, [Manafort] spoke to Trump [redacted] ; Manafort recalled that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign *9 manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on upcoming releases. Around the same time, Gates was with Trump on a trip to an airport [redacted] , and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy). In addition, a discussion related to the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special Counsel’s Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who attended the June 9 meeting.” at II-105 (redactions in original).
The Mueller Report acknowledges investigative “gaps” that were sufficiently significant that the Special Counsel could not “rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.” Id . at I-10. Six “identified gaps” were that: (1) “[s]ome individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity”; (2) “[s]ome of the information obtained . . . was presumptively covered by legal privilege and was screened from investigators”; (3) “other witnesses and information—such as information known to attorneys or individuals claiming to be members of the media”—were not pursued “in light of internal Department of Justice policies”; (4) “practical limits” prevented the gathering of information and questioning of witnesses abroad; (5) “[e]ven when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete”; and (6) “some of the individuals we interviewed or whose conduct we investigated—including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or *10 communications records.” Id. Consequently, the Mueller Report cautions that “[a] statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” Id. at I-2.
The Report acknowledges that these gaps adversely affected the investigation and, in some instances, precluded the Special Counsel from reaching any conclusion about whether criminal conduct occurred. For example, evidence related to the President’s knowledge about his personal attorney’s involvement in the preparation of Cohen’s false testimony to Congress was not pursued. The Mueller Report states that “[t]he President’s personal counsel declined to provide us with his account of his conversations with Cohen,” and “we did not seek to obtain the contents of any . . . communications” between President Trump and his attorney during that time period. Id. at II-154. “The absence of evidence about the President and his counsel’s conversations about the drafting of Cohen’s statement precludes us from assessing what, if any, role the President played.” Id. In another example, the Special Counsel examined the circumstances of a meeting held, during the transition, on January 11, 2017, on the Seychelles Islands between Kirill Dmitriev, the chief executive officer of Russia’s sovereign wealth fund, and Erik Prince, a businessman with close ties to Trump Campaign associates, including senior Trump advisor Steve Bannon. See id . at I-7, 148. Prince said he discussed the meeting with Bannon in January 2017, but Bannon denied this, and “[t]he conflicting accounts . . . could not be independently clarified . . . because neither [Prince nor Bannon] was able to produce any of the [text] messages they exchanged in the time period surrounding the Seychelles meeting.” at I-156. “Prince’s phone contained no text messages prior to March 2017” and “Bannon’s devices similarly contained no messages in the relevant time period,” and neither Prince nor *11 Bannon could account for the absent messages. Id. ; see also id. at I-153–55 (extensive grand jury redactions). [5]
Some areas of the report describing such gaps contain redactions of grand jury material. For example, in describing the Trump Tower Meeting, the Mueller Report states: “The Office spoke to every participant [at the Trump Tower Meeting] except [Natalia] Veselnitskaya and Trump, Jr., the latter of whom declined to be voluntarily interviewed by the Office,” with the remainder of the sentence redacted for grand jury secrecy. Id. at I-117. The Special Counsel declined to pursue charges related to this meeting in part because “the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted ‘willfully.’” Id. at I-186. [6]
The Mueller Report also reveals the Special Counsel’s unsuccessful effort to speak directly with the President: “We also sought a voluntary interview with the President. After more than a year of discussion, the President declined to be interviewed,” which statement is followed by two lines redacted for references to grand jury material. Id . at II-13. Although “the President did agree to answer written questions on certain Russia-related topics, and he provided us with answers,” the President refused “to provide written answers to questions on obstruction topics or questions on events during the transition.” Id . The Special Counsel acknowledged “that we had the authority and legal justification to issue a grand jury subpoena to obtain the *12 President’s testimony,” but “chose not to do so.” Id. ; see also Mueller Report App’x C (describing efforts to interview the President in greater detail). When the Special Counsel testified before Congress on July 24, 2019, he acknowledged that the President’s written responses to questions posed by the Special Counsel’s Office were “generally” not only “inadequate and incomplete,” but also “showed that he wasn’t always being truthful.” HJC App., Ex. W, Former Special Counsel Robert S. Mueller, III on the Investigation into Russian Interference in the 2016 Presidential Election: Hearing before the H. Permanent Select Comm. on Intelligence , 116th Cong. 83 (July 24, 2019), ECF No. 1-24.
The Special Counsel’s investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” Mueller Report at I-2. Nor did the Special Counsel “make a traditional prosecutorial judgment” or otherwise “draw ultimate conclusions about the President’s conduct.” Id . at II-8. At the same time, the Special Counsel stated that “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” Id. at II-2. “[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.” Id.; see also id. at II-8, II-182 (reiterating that Report “does not exonerate” President). “Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations,” the Special Counsel “accepted” the DOJ Office of Legal Counsel’s (“OLC”) legal conclusion that “‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’” at II-1 (citation omitted) (quoting OLC Op. at *13 222, 260). This OLC legal conclusion has never been adopted, sanctioned, or in any way approved by a court.
At the same time, impeachment factored into this analysis, as the Special Counsel also concluded “that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office [which] accords with our constitutional system of checks and balances and the principle that no person is above the law.” Id . at II-8.
B. Release of the Mueller Report
On March 22, 2019, Attorney General (“AG”) William Barr, as required by 28 C.F.R. § 600.9(a)(3), notified the Chairmen and Ranking Members of the United States House and Senate Judiciary Committees, via a one-page letter, that the Special Counsel had completed his investigation. DOJ Resp., Ex. 1, Letter from William P. Barr, Attorney Gen., Dep’t of Justice, to Lindsey Graham, Chairman, S. Comm. on the Judiciary, et al. (Mar. 22, 2019), ECF No. 20-1. AG Barr stated that he “intend[ed] to consult with Deputy Attorney General Rosenstein and Special Counsel Mueller to determine what other information from the report [could] be released to Congress and the public consistent with the law,” and that he “remain[ed] committed to as much transparency as possible.” Id. Two days later, on March 24, 2019, AG Barr sent a second, four-page letter to the Chairmen and Ranking Members of the United States House and Senate Judiciary Committees, advising them “of the principal conclusions reached by Special Counsel Robert S. Mueller III,” and reiterating his “intent . . . to release as much of the Special Counsel’s report as [possible] consistent with applicable law,” noting that he first needed to identify information “subject to Federal Rule of Criminal Procedure 6(e),” as well as “information that could impact other ongoing matters.” DOJ Resp., Ex. 2, Letter from William P. Barr, Attorney *14 Gen., Dep’t of Justice, to Lindsey Graham, Chairman, S. Comm. on the Judiciary, et al. 1, 4 (Mar. 24, 2019), ECF No. 20-2. [7]
The next day, March 25, 2019, the chairpersons of six House committees (“House Committee Chairpersons”)—including HJC Chairman Jerrold Nadler—responded to AG Barr in a three-page letter. See HJC App., Ex. C, Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, et al., to William P. Barr, Attorney Gen., Dep’t of Justice (Mar. 25, 2019), ECF No. 1-4. Highlighting that each of their committees was “engaged in oversight activities that go directly to the President’s conduct, his attempts to interfere with federal and congressional investigations, his relationships and communications with the Russian government and other foreign powers, and/or other alleged instances of misconduct,” the House Committee Chairpersons “formally request[ed]” that AG Barr “release the Special Counsel’s full report to Congress” and “begin transmitting the underlying evidence and materials to the relevant committees.” Id. at 1. This information, they explained, was necessary “to perform their duties under the Constitution,” such as their duty to “make an independent assessment of the evidence regarding obstruction of justice.” Id. at 1, 2 . [8]
Four days later, on March 29, 2019, AG Barr responded to both the House Committee Chairpersons’ letter and a letter sent by Senate Judiciary Committee (“SJC”) Chairman Lindsey Graham. See DOJ Resp., Ex. 3, Letter from William P. Barr, Attorney Gen., Dep’t of Justice, to Lindsey Graham, Chairman, S. Comm. on the Judiciary, and Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Mar. 29, 2019), ECF No. 20-3. AG Barr reaffirmed that he was preparing the Report for release, again noting that redactions would be required to protect material that was subject to grand jury secrecy under Rule 6(e) and that could compromise sensitive sources and methods, as well as to protect information that could pose harm to other ongoing matters or was related to the privacy and reputations of third parties. Id. at 1.
The House Committee Chairpersons objected to AG Barr’s proposed redactions. See HJC App., Ex. D, Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, et al., to William P. Barr, Attorney Gen, Dep’t of Justice (Apr. 1, 2019), ECF No. 1-5. They observed that “[t]he allegations at the center of Special Counsel Mueller’s investigation strike at the core of our democracy,” such that “Congress urgently needs his full, unredacted report and its underlying evidence in order to fulfill its constitutional role.” at 2; see also id. App’x at 1 (stating that Congress has an “independent duty to investigate misconduct by the President”). As to grand jury material, the House Committee Chairpersons proposed that DOJ “seek leave from the district court to produce those materials to Congress—as it has done in analogous situations in the past,” id. at 2, explaining that the material was needed because “[HJC] is engaged in an ongoing investigation of whether the President has undermined the rule of law, including by compromising the integrity of the Justice Department,” id . App’x at 2.
On April 18, 2019, AG Barr released the Mueller Report in redacted form to the Congress and the public. See DOJ Resp., Ex. 4, Letter from William P. Barr, Attorney Gen., *16 Dep’t of Justice, to Lindsey Graham, Chairman, S. Comm. on the Judiciary, et al. (Apr. 18, 2019), ECF No. 20-4. AG Barr also promised to “make available” to SJC Chairman Graham, HJC Ranking Member Dianne Feinstein, HJC Chairman Nadler, and HJC Ranking Member Collins “a version of the report with all redactions removed except those relating to grand-jury information.” at 4.
Not satisfied with the redacted version of the Mueller Report, the next day HJC served a subpoena on AG Barr requiring the production of three classes of documents: (1) “[t]he complete and unredacted version of the [Mueller Report],” including attachments; (2) “[a]ll documents referenced in the Report”; and (3) “[a]ll documents obtained and investigative materials created by the Special Counsel’s office.” HJC App., Ex. G, Subpoena by Authority of the H. of Representatives to William P. Barr, Attorney Gen., Dep’t of Justice 3 (Apr. 19, 2019), ECF No. 1-8.
DOJ has granted HJC access to “the entirety of Volume II, with only grand jury redactions” and did “the same with regard to Volume I” for “the Chairman and Ranking Member from [HJC].” DOJ Resp. at 6 n.2. DOJ has not, however, allowed HJC to review the portions of the Mueller Report redacted pursuant to Rule 6(e). See, e.g. , HJC App., Ex. K, Letter from Stephen E. Boyd, Assistant Attorney Gen., Dep’t of Justice, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary 4 (May 1, 2019), ECF No. 1-12 (stating that “Rule 6(e) contains no exception that would permit the Department to provide grand-jury information to the Committee in connection with its oversight role”).
C. The Instant Proceeding
On July 26, 2019, HJC submitted the instant application for an order pursuant to Federal Rule of Criminal Procedure 6(e) authorizing the release to HJC of certain grand jury materials *17 related to the Special Counsel’s investigation. HJC App. HJC requests the release to it of three categories of material:
1. all portions of [the Mueller Report] that were redacted pursuant to Federal Rule of Criminal Procedure 6(e);
2. any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e); and 3. transcripts of any underlying grand jury testimony and any grand jury exhibits that relate directly to (A) President Trump’s knowledge of efforts by Russia to interfere in the 2016 U.S. Presidential election; (B) President Trump’s knowledge of any direct or indirect links or contacts between individuals associated with his Presidential campaign and Russia, including with respect to Russia’s election interference efforts; (C) President Trump’s knowledge of any potential criminal acts by him or any members of his administration, his campaign, his personal associates, or anyone associated with his administration or campaign; or (D) actions taken by former White House Counsel Donald F. McGahn II during the campaign, the transition, or McGahn’s period of service as White House Counsel.” at 1–2.
After entry of a scheduling order in accord with the dates proposed by the parties, see Min. Ord. (July 31, 2019), DOJ filed its response to HJC’s application on September 13, 2019, maintaining that Rule 6(e) prohibits disclosure of the requested material to HJC, see DOJ Resp., and HJC filed its reply on September 30, 2019, see HJC’s Reply in Support of its App. for an Order Authorizing the Release of Certain Grand Jury Materials (“HJC Reply”), ECF No. 33. Following a hearing on October 8, 2019, the parties provided supplemental submissions to *18 address additional issues not covered by the initial briefing. See Min. Ord. (October 8, 2019). [10] This matter is now ripe for resolution.
II. LEGAL STANDARD
Under Rule 6(e) of the Federal Rules of Criminal Procedure, disclosure of “a matter
occurring before the grand jury” is generally prohibited. F ED . R. C RIM . P. 6(e)(2)(B). While
witnesses are expressly exempted from any “obligation of secrecy,”
id
. 6(e)(2)(A), the Rule
provides a list of seven categories of persons privy to grand jury proceedings who must keep
secret “[i]nformation . . . presented to the grand jury,”
In re Sealed Case No. 99-3091 (Office of
Indep. Counsel Contempt Proceeding)
,
Rule 6(e) also sets out exceptions to grand jury secrecy, some of which allow disclosure
without any judicial involvement and others of which require either judicial notice or a court
order.
See
F ED . R. C RIM . P. 6(e)(3)(A)–(E).
[12]
The D.C. Circuit recently held, in
McKeever v.
*19
Barr
,
III. DISCUSSION
HJC is “not requesting the entire grand jury record” of the Special Counsel’s investigation. HJC Reply at 24. [15] Instead, HJC seeks only disclosure of the grand jury notices were sixteen instances when grand jury information was revealed to foreign governments. DOJ has represented that “[n]o grand jury information collected from the Mueller investigation and protected from disclosure was shared with any foreign government pursuant to Rule 6(e)(3)(D).” DOJ’s Supplemental Submission in Resp. to Min. Ord. of Oct. 8, 2019 (“DOJ Second Supp.”) at 2, ECF No. 40.
[13] The D.C. Circuit’s narrow textual reading of Rule 6(e) is based on the subsection in the Rule that secrecy is required “[u]nless these rules provide otherwise.” F ED . R. C RIM . P. 6(e)(2)(B) (emphasis added). Yet, this subsection is difficult to reconcile with other statutory authorities that either require or permit disclosure of grand jury matter in civil forfeiture, financial regulatory, special–grand jury, and criminal defense contexts. See, e.g., 18 U.S.C. § 3322(a) (allowing disclosure of grand jury information to “an attorney for the government . . . for use in connection with any civil forfeiture provision of federal law”); id. §§ 3322(a), (b)(1)(A) (authorizing disclosure of grand jury information to “an attorney for the government for use in enforcing section 951 of the Financial Institutions Reform, Recovery and Enforcement Act of 1989” and to federal and state financial institution regulatory agencies “for use in relation to any matter within the jurisdiction of such regulatory agency” when the relevant grand jury was investigating “a banking law violation”); id. §§ 3333(a), (b) (permitting special grand juries to provide reports that the impaneling court may make public); id. §§ 3500(b), (e)(3) (requiring disclosure to criminal defendant of certain grand jury testimony of trial witnesses). The D.C. Circuit in McKeever rejected the view articulated by this Court and several Circuit Courts of
Appeals that courts have inherent authority to disclose grand jury material.
See, e.g.
,
In re Application to Unseal
Dockets Related to the Independent Counsel’s 1998 Investigation of President Clinton
,
execution of “nearly 500 search-and-seizure warrants,” issuance of “more than 230 orders for communications
records under 18 U.S.C. § 2703(d),” “almost 50 orders authorizing use of pen registers,” “13 requests to foreign
governments pursuant to Mutual Legal Assistance Treaties,” and “more than 2,800 subpoenas under the auspices of
*20
information referenced in or underlying the Mueller Report as well as grand jury information
collected by the Special Counsel relating to four categories of information pursuant to Rule
6(e)’s exception for disclosure “preliminarily to or in connection with a judicial proceeding.”
HJC App. at 26 (internal quotation marks omitted) (quoting F ED . R. C RIM . P. 6(e)(3)(E)(i)).
Disclosure of grand jury information is proper under this exception when three requirements are
satisfied. The person seeking disclosure must first identify a relevant “judicial proceeding”
within the meaning of Rule 6(e)(3)(E)(i); then, second, establish that the requested disclosure is
“preliminarily to” or “in connection with” that proceeding; and, finally, show a “particularized
need” for the requested grand jury materials.
See United States v. Sells Eng’g, Inc.
, 463 U.S.
418, 443 (1983) (“Rule 6(e)(3)([E])(i) simply authorizes a court to order disclosure
‘preliminarily to or in connection with a judicial proceeding.’ . . . We have consistently
construed the Rule, however, to require a strong showing of particularized need for grand jury
materials before any disclosure will be permitted.”);
United States v. Baggot
,
As discussed more fully below, HJC has identified the requisite “judicial proceeding” to be a possible Senate impeachment trial, which is an exercise of judicial power the Constitution assigned to the Senate. See U.S. C ONST . art. I, § 3, cl. 6. HJC has demonstrated that its current investigation is “preliminarily to” a Senate impeachment trial, as measured—per binding Supreme Court and D.C. Circuit precedent—by the “primary purpose” of HJC’s requested disclosure to determine whether to recommend articles of impeachment against the President. a grand jury sitting in the District of Columbia,” and interviews of “approximately 500 witnesses,” “almost 80” of whom “testified before a grand jury.” Mueller Report at I-13.
This purpose has only been confirmed by developments occurring since HJC initially submitted
its application. Finally, HJC has further shown a “particularized need” for the requested grand
jury materials that outweighs any interest in continued secrecy.
See Douglas Oil Co. of Ca. v.
Petrol Stops Nw.
,
The three requirements for disclosure under Rule 6(e)(3)(E)(i) are addressed seriatim . A. Rule 6(e)’s “Judicial Proceeding” Requirement is Satisfied Because an Impeachment Trial is Such a Proceeding
HJC posits that an impeachment trial before the Senate is a “judicial proceeding,” and that Rule 6(e)’s “judicial proceeding” requirement is thus satisfied. HJC App. at 28. DOJ, for its part, rejects the proposition that any congressional proceeding may qualify as a “judicial proceeding.” DOJ Resp. at 13 (“The plain meaning of ‘judicial proceeding’ does not include congressional proceedings.”) (capitalization altered). This dispute thus presents the threshold issue of whether an impeachment trial in the Senate is a “judicial proceeding” under Rule 6(e). Consideration of this issue requires an understanding of (1) what the drafters of Rule 6(e) meant *22 by “judicial proceeding,” and (2) the precise nature of an impeachment trial. Both considerations are informed by history and, contrary to DOJ’s position, point to the same conclusion: an impeachment trial is, in fact, a “judicial proceeding” under Rule 6(e), as binding D.C. Circuit precedent correctly dictates.
1. The Term “Judicial Proceeding” in Rule 6(e) Has a Broad Meaning
In the Rule 6(e) context, “[t]he term judicial proceeding has been given a broad
interpretation by the courts.”
In re Sealed Motion
,
In keeping with the term’s “broad meaning,” disclosure of grand jury materials has been
judicially authorized under the “judicial proceeding” exception in an array of judicial and quasi-
judicial contexts. Courts, for instance, have determined that attorney disciplinary proceedings
are “judicial proceedings” because such a proceeding is “designed in the public interest to
preserve the good name and uprightness of the bar, made up, as it is, of attorneys who are public
officers.”
Doe v. Rosenberry
,
As these examples illustrate, the term “judicial proceeding” in Rule 6(e) does not refer
exclusively to proceedings overseen by courts exercising the “judicial Power of the United
States” referred to in Article III of the Constitution. U.S. C ONST . art. III, § 1. Plainly,
proceedings in state courts are “judicial proceedings” eligible for disclosure of grand jury
*24
information.
See, e.g., United States v. Colonial Chevrolet Corp.
,
Moreover, at the federal level, “the judicial power of the United States is not limited to
the judicial power defined under Article III.”
Freytag v. Comm’r of Internal Revenue
, 501 U.S.
868, 889 (1991) (citing
Am. Ins. Co. v. Canter
,
Notwithstanding the weight of these precedents, DOJ maintains that an impeachment trial cannot be a “judicial proceeding” under Rule 6(e) because the plain and ordinary meaning of the term refers to “legal proceedings governed by law that take place in a judicial forum before a judge or a magistrate.” DOJ Resp. at 2; see also id. at 13 (“By its plain terms, the phrase ‘judicial proceeding’ means a matter that transpires in court before a neutral judge according to generalized legal rules.”). [19] This plain-meaning argument ignores the broad interpretation given to the term “judicial proceeding” as used in Rule 6(e), s ee, e.g., In re Sealed Motion , 880 F.2d at *26 1379, and fails to grapple with the judicial nature of an impeachment trial, see infra Part III.A.2. In any event, applying DOJ’s plain-meaning construction and imposing a requirement that a “judge” preside to qualify as a “judicial proceeding” would not remove an impeachment trial from Rule 6(e)’s ambit since the Chief Justice of the Supreme Court presides over any Senate impeachment trial of the President. U.S. C ONST . art. I, § 3, cl. 6. [20] DOJ dismisses the Chief Justice’s role in impeachment trials as “purely administrative, akin to a Parliamentarian,” whose decisions can be overridden by a vote of the Senate. DOJ Resp. at 16. Even if true up to a point, the fact remains that the Senate may grant the Chief Justice as significant a role as it sees fit.
In sum, “judicial proceeding,” as used in Rule 6(e), is a term with a broad meaning that includes far more than just the prototypical judicial proceeding before an Article III judge.
2. An Impeachment Trial is Judicial in Nature
DOJ flatly states that no congressional proceeding can constitute a Rule 6(e) “judicial proceeding” because “[t]he Constitution carefully separates congressional impeachment proceedings from criminal judicial proceedings.” DOJ Resp. at 15. This stance, in service of the obvious goal of blocking Congress from accessing grand jury material for any purpose, overlooks that an impeachment trial is an exercise of judicial power provided outside Article III and delegated to Congress in Article I. [21] Contrary to DOJ’s position—and as historical practice, the Federalist Papers, the text of the Constitution, and Supreme Court precedent all make clear— impeachment trials are judicial in nature and constitute judicial proceedings.
“The institution of impeachment is essentially a growth deep rooted in the ashes of the past.” Wrisley Brown, The Impeachment of the Federal Judiciary , 26 H ARV . L. R EV . 684, 685 (1913). It was “born of the parliamentary usage of England,” id. , where “the barons reserved to Parliament the right of finally reviewing the judgments’ [sic] of all the other courts of judicature.” Id. “[T]he assembled parliament . . . represent[ed] in that respect the judicial authority of the king,” and “[w]hile this body enacted laws, it also rendered judgments in matters of private right.” Kilbourn v. Thompson , 103 U.S. (13 Otto) 168, 183 (1880); see also Brown, supra , at 685. (explaining that “the Parliament [was] the high court of the realm in fact as well as in name”). “Upon the separation of the Lords and Commons into two separate bodies . . . called the House of Lords and the House of Commons, the judicial function of reviewing by appeal the decisions of the courts of Westminster Hall passed to the House of Lords.” Kilbourn , 103 U.S. (13 Otto) at 183–84. “To the Commons,” however, “was left the power of impeachment, and, perhaps, others of a judicial character.” at 184. “And during the memorable epoch preluding the dawn of American independence,” the English practice of impeachment, “though seldom put into application, was still in the flower of its usefulness.” Brown, supra , at 687.
During the drafting of the Constitution, this English history informed how the Framers approached impeachment, and examination of pertinent Federalist Papers confirms that they viewed the impeachment power as judicial. See T HE F EDERALIST N O . 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (explaining that impeachment in the United States was “borrowed” from the “model” “[i]n Great Britain”). Alexander Hamilton’s writings in Federalist Nos. 65 and 66 are illustrative. The preceding Federalist Nos. 62, 63, and 64 had discussed most of the powers that the new Constitution granted to the Senate. See T HE F EDERALIST N OS . 62–63 *28 (probably James Madison), N O . 64 (John Jay). The only “remaining powers” to be discussed were those “comprised in [the Senate’s] participation with the executive in the appointment to offices, and in [the Senate’s] judicial character,” and Hamilton accordingly used Federalist Nos. 65 and 66 to “conclude” the discussion of the Senate “with a view of the judicial character of the Senate” “as a court for the trial of impeachments.” T HE F EDERALIST N O . 65, supra , at 396 (Alexander Hamilton).
As Hamilton’s thinking on the subject of impeachment demonstrates, his choice of the
words “judicial” and “court for the trial of impeachments” was purposeful.
See Nixon v. United
States
,
Most importantly, when Hamilton addressed the objection that making the Senate the
“court of impeachments” “confound[ed] legislative and judiciary authorities in the same body,”
he
accepted
the premise that granting the Senate the power to try impeachments produced an
“intermixture” of “legislative and judiciary authorities.” T HE F EDERALIST N O . 66,
supra
, at 401;
see also
T HE F EDERALIST N O . 81,
supra
, at 482 (Alexander Hamilton) (noting that there are
“men who object to the Senate as a court of impeachments, on the ground of an improper
intermixture of powers”). Such “partial intermixture,” he argued, is “not only proper but
necessary to the mutual defense of the several members of the government against each other.”
T HE F EDERALIST N O . 66,
supra
, at 401–02. He pointed out that many states at the time combined
legislative and judicial functions: the New York constitution made the New York Senate,
“together with the chancellor and judges of the Supreme Court, not only a court of
impeachments, but the highest judicatory in the State, in all causes, civil and criminal,”
id.
at
402; in New Jersey, “the final judiciary authority [was] in a branch of the legislature,”
id.
at
402 n.*; and “[i]n New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one
branch of the legislature [was] the court for the trial of impeachments,”
id.
These Federalist
Papers leave no doubt that the power to try impeachments was, in Hamilton’s view, inherently
judicial.
See Nixon
,
Hamilton was not the only Founder who conceived of the impeachment power as inherently judicial. Notably, James Madison shared Hamilton’s view. In Federalist No. 38, Madison, like Hamilton, noted that a principle objection to the Constitution was “the trial of impeachments by the Senate, . . . when this power so evidently belonged to the judiciary department.” T HE F EDERALIST N O . 38, supra , at 236 (James Madison). Then, in Federalist No. 47, Madison defended this mixing of powers. In the British system, Madison pointed out, “the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other” because, inter alia , “[o]ne branch of the legislative department . . . is the sole depositary of judicial power in cases of impeachment.” T HE F EDERALIST N O . 47, supra , at 302 (James Madison) (spelling irregularity in original). Such mixing, he pointed out, occurred in the states as well, such as in New Hampshire, where “[t]he Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments,” and in Massachusetts, where “the Senate, which is a part of the legislature, is a court of impeachment,” notwithstanding a declaration in the state’s constitution “‘that the legislative department shall never exercise the . . . judicial powers.’” at 304–05 (citing also to the “court for the trial of impeachments” in New York “consist[ing] of one branch of the legislature and the principal members of the judiciary department,” id. at 305, and to the “court of impeachments” in Delaware, “form[ed]” by “one branch of the [legislative department],” id. at 306)).
Hamilton and Madison’s view is confirmed by the text of the Constitution. By making the Senate the “court of impeachments,” id. at 306; T HE F EDERALIST N O . 65, supra , at 398 (Alexander Hamilton), the Framers tasked the Senate with a judicial assignment. Article I 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”; “[w]hen *31 the President of the United States is tried , the Chief Justice shall preside”; “[a]nd no person shall be convicted without the Concurrence of two thirds of the Members present.” U.S. C ONST . art. I, § 3, cl. 6 (emphases added). The next clause 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 . . . : but the Party convicted shall nevertheless be liable and subject to [criminal prosecution].” Id. cl. 7 (emphases added). Article II, meanwhile, prevents the President’s power to pardon from extending to “ Cases of Impeachment,” id. art. II, § 2, cl. 1 (emphasis added), and allows for removal of the President “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors .” Id. § 4 (emphases added). Finally, even Article III—despite being the article devoted to the “judicial” branch—reveals that when it comes to impeachment, the Senate takes on a judicial character, for Article III requires that “[t]he Trial of all Crimes , except in Cases of Impeachment, shall be by Jury.” art. III, § 2, cl. 3 (emphases added).
These words employed in the Constitution to describe the Senate’s role—“trial,” “convict,” “judgment,” “case,” “crime,” and “misdemeanor”—are inherently judicial. Any layperson asked whether a constitutionally prescribed “trial” of a “case” in order to reach a “judgment” as to whether a person should be “convicted” of a “crime” or “misdemeanor,” is judicial in character, would invariably answer yes—and rightly so. Cf. Mazars , 2019 WL 5089748, at *32 (Rao, J., dissenting) (“Article I makes clear that in this [impeachment] role, the Senate acts as a court trying impeachable offenses and renders judgment . . . .”); id . at *50 (“Senate trials of impeachment are an exercise of judicial power . . . .”).
Black’s Law Dictionary confirms this intuition. “Trial” means “[a] formal judicial
examination of evidence and determination of legal claims in an adversary proceeding.”
Trial
,
*32
B LACK ’ S L AW D ICTIONARY (11th ed. 2019) [hereinafter B LACK ’ S ]. “Convict” means “[t]o prove
or officially announce (a criminal defendant) to be guilty of a crime after proceedings in a law
court; specif., to find (a person) guilty of a criminal offense upon a criminal trial, a plea of guilty,
or a plea of nolo contendere (no contest).”
Convict
, B LACK ’ S . “Judgment” can mean either
“mental faculty” or “[a] court’s final determination of the rights and obligations of the parties in
a case” (or, in English law, “[a]n opinion delivered by a member of the appellate committee of
the House of Lords; a Law Lord’s judicial opinion”),
Judgment
, B LACK ’ S —and in the context of
other words like “trial” and “convict,” the
noscitur a sociis
canon counsels against adopting the
first definition,
see Yates v. United States
,
Not surprisingly, therefore, the Supreme Court has confirmed, on at least three separate
occasions, that the Senate’s power to try impeachments is judicial. First, in
Hayburn’s Case
, 2
*33
U.S. (2 Dall.) 408 (1792), the Court quoted a letter from “[t]he circuit court for the district of
North Carolina (consisting of Iredell, Justice, and Sitgreaves, District Judge)” observing that “no
judicial power of any kind appears to be vested [in the legislature], but the important one relative
to impeachments.”
Id.
at 410 n.* (capitalization altered). Second, in
Kilbourn
, the Court
explained that “[t]he Senate . . . exercises the judicial power of trying impeachments.” 103 U.S.
(13 Otto) at 191. Third, in
Marshall v. Gordon
,
As the foregoing demonstrates, impeachment trials are judicial in nature, notwithstanding the Founders’ decision to make the Senate the “court of impeachments.” As Chief Justice Rehnquist stated, in considering a Senator’s objection to House Managers’ “referring to the Senate sitting as triers in a trial of the impeachment of the President of the United States,” 145 Cong. Rec. S279 (statement of Sen. Harkin), “the objection . . . is well taken, that the Senate is not simply a jury; it is a court in this case,” id. (statement of Chief Justice Rehnquist). “Therefore,” Chief Justice Rehnquist continued, “counsel should refrain from referring to the Senators as jurors.” The views of the Senators participating in the last impeachment trial of a sitting President confirm their understanding of their judicial role. See id. at S1584 (statement of Sen. Leahy) (noting that when “Senate is the court,” “Senators are not merely serving as petit jurors” but “have a greater role and a greater responsibility in this trial”); id. at S1599 (statement of Sen. Stevens) (noting that “an impeachment trial is no ordinary proceeding” and that Senators “sit as judge and jury—rulers on law and triers of fact”); id. at S1602 (statement of Sen. Lieberman) (noting that impeachment “is unique in that it is a hybrid of the legislative and the judicial, the political and the legal” (quoting Senate Rules and Precedents Applicable to *34 Impeachment Trials: Executive Session Hearing Before the S. Comm. on Rules and Administration , 93rd Cong. 193 (1974) (statement of Sen. Mansfield)); id. at S1618 (statement of Sen. Crapo) (“As each Senator took the oath to provide impartial justice, . . . [n]o longer was the Senate a legislative body, it was a court of impeachment. A unique court, to be sure, not identical to traditional civil and criminal courts, but a court nonetheless.”).
This further supports the conclusion that an impeachment trial constitutes “a judicial proceeding” under Rule 6(e)(3)(E)(i).
3. Historical Practice Before Enactment of Rule 6(e) Informs Interpretation of that Rule
Historical practice confirms that, contrary to DOJ’s position, Rule 6(e) does not bar disclosure of grand jury information to Congress. Indeed, grand jury investigations have prompted and informed congressional investigations, and Rule 6(e) was meant to codify this practice.
Several examples illustrate that Congress was afforded access to grand jury material prior to the enactment of Rule 6(e) in 1946. In 1902, a House committee investigated allegations of election fraud in St. Louis, Missouri, based on “a report of a grand jury which sat in St. Louis” *35 that a city police board in the district apparently had assisted with the election fraud. 2 Asher C. Hinds, Hinds’ Precedents of the House of Representatives Ch. 40 § 1123 [hereinafter Hinds]. Twenty years later, in 1924, the Senate launched an investigation of a Senator who had been indicted by a grand jury. 6 Cannon Ch. 188 § 399. Seeking to ensure that the congressional investigation had access to all information relevant to the allegations, the chairman of the investigating committee “sen[t] a telegram to the presiding judge . . . asking for the minutes of the grand jury proceedings, the names of the witnesses, and the documentary evidence which had gone before the grand jury,” and subsequently received what he requested. Id. (indicating that “reply to the telegram” helped the committee compile its list of witnesses, and that “[n]o evidence [was] left out of the [Senate committee] hearings”).
Again, in 1924, in response to a grand jury report from the Northern District of Illinois implicating two unnamed Members of the House in a matter involving the payment of money, the House directed the Attorney General to submit to it “the names of the two [Members] and the nature of the charges made against them.” Id. § 402. The Attorney General objected to the request, but only insofar as the request would lead to “two tribunals attempting to act upon the same facts and to hear the same witnesses at the same time,” which would “result in confusion and embarrassment and . . . defeat the ends of justice.” Accordingly, the Attorney General *36 assured the House that if, “acting within its constitutional power (under Article I) to punish its Members for disorderly behavior or to expel such Member, [the House] request[ed] that all the evidence now in the possession of anyone connected with the Department of Justice . . . be turned over to [it],” he would “direct all such evidence, statements, and information obtainable to be immediately turned over to [the House] or to such committee as may be designated by the House.”
In 1946, Rule 6(e) was enacted to codify current practice and not “to create new law.”
In
re 1972 Grand Jury Report
,
This conclusion is bolstered by the fact that these historical examples share a common
thread: allegations of election fraud and punishment of Members of Congress. In these
*37
situations, as with cases of impeachment, Congress is acting more in a judicial rather than a
legislative capacity. As the Supreme Court explained in
Kilbourn
, when the House “punish[es]
its own members and determin[es] their election,” the House “partake[s]” in some “degree” of
the “character” of a “court.” 103 U.S. (13 Otto) at 189;
see also id.
at 190 (“Each House is by
the Constitution made the
judge
of the election and qualification of its members. In deciding on
these it has an undoubted right to examine witnesses and inspect papers, subject to the usual
rights of witnesses in such cases; and it may be that a witness would be subject to like
punishment at the hands of the body engaged in
trying
a contested election, for refusing to
testify, that he would if the
case
were pending before a
court of judicature
.” (emphases added)).
Further, the Supreme Court has stated that the Senate has “certain powers, which are not
legislative, but judicial, in character,” and that “[a]mong these is the power to judge of the
elections, returns, and qualifications of its own members.”
Barry v. United States ex rel.
Cunningham
,
4. Binding D.C. Circuit Precedent Forecloses Any Conclusion Other Than That
an Impeachment Trial is a “Judicial Proceeding”
The D.C. Circuit has already expressly concluded at least twice—in
Haldeman v. Sirica
and
McKeever v. Barr
—that an impeachment trial is a “judicial proceeding” under Rule 6(e), and
these decisions bind this Court.
See also In re Sealed Motion
,
Forty-five years ago, Chief Judge John Joseph Sirica ordered that the Watergate grand
jury’s report on the President’s conduct (“Watergate Roadmap”) be sent to HJC, which was then
*38
engaged in an impeachment-related investigation of President Richard Nixon.
See In re 1972
Grand Jury Report
,
In Haldeman v. Sirica , the D.C. Circuit, sitting en banc, reviewed Chief Judge Sirica’s decision. Two defendants facing charges arising from the same grand jury investigation filed petitions for writs of prohibition or mandamus, asserting that the release of the grand jury’s Watergate Roadmap to HJC would adversely affect their right to a fair trial. Haldeman , 501 F.2d at 714–15. Notably, by contrast to its position in the instant case, DOJ filed a memorandum before the D.C. Circuit supporting Chief Judge Sirica’s decision to release the grand jury report to HJC. Id. at 714.
The D.C. Circuit agreed with Chief Judge Sirica, DOJ, and the grand jury, and thus allowed the disclosure of grand jury materials to HJC to occur. In so doing, the Circuit rejected the petitioners’ argument that “the discretion ordinarily reposed in a trial court to make such disclosure of grand jury proceedings as he deems in the public interest is, by the terms of Rule 6(e) of the Federal Rules of Criminal Procedure, limited to circumstances incidental to judicial proceedings and that impeachment does not fall into that category.” at 715. The Circuit determined that Rule 6(e) presented no obstacle to the disclosure that Chief Judge Sirica had ordered: “Judge Sirica has dealt at length with this contention . . . in his filed opinion. We are in *39 general agreement with his handling of these matters, and we feel no necessity to expand his discussion.” Id.
One judge—Judge MacKinnon—wrote separately in Haldeman, agreeing that Rule 6(e)’s judicial proceeding exception authorized the disclosure. See id. at 717 (MacKinnon, J., concurring in part and dissenting in part). In fact, he pointed out that “[a]t oral argument the prosecutor represented that this disclosure of the grand jury material to the House Judiciary Committee and eventually possibly to the House and Senate is being made ‘preliminarily to (and) in connection with a judicial proceeding,’ and explained that his “concurrence in the release of the grand jury material ha[d] taken this representation into consideration.” Id. (quoting F ED . R. C RIM . P. 6(e)). For Judge MacKinnon, the problem with Chief Judge Sirica’s decision was that it had not gone far enough in disclosing grand jury material to HJC. See id. at 716 (“I would . . . permit the House Judiciary Committee . . . to have access not only to the limited testimony accompanying the report and index but to the entire grand jury proceedings under supervision of the court . . . .”).
Haldeman
has stood the test of time. Earlier this year, in fact, the D.C. Circuit turned
back to
Haldeman
in
McKeever
. The primary issue in
McKeever
was whether courts possess
inherent authority to disclose grand jury materials, and the Circuit answered that question in the
negative.
Together,
Haldeman
and
McKeever
hold that an impeachment trial is a “judicial
proceeding” under Rule 6(e), and these decisions bind this Court.
See Save Our Cumberland
Mountains, Inc. v. Hodel
,
Supp. 3d at 318 n.4), for a plain reading of the term “judicial proceeding” as precluding application to a
congressional proceeding, but the cited decision read
Haldeman,
like Judge Srinivasan, as “allow[ing] for district
court disclosures beyond Rule 6(e)’s exceptions,”
Mckeever
,
could constitute a judicial proceeding, even though” the 1983 amendments to Rule 6(e)(3)(E)(i) “post-dated
DOJ strains to distinguish
Haldeman
and
McKeever
with arguments that are simply
unpersuasive. As to
Haldeman
, DOJ focuses on the procedural posture, claiming that “[t]he only
issue decided in that case was whether the petitioners had shown that the district court’s order
was a ‘clear abuse of discretion or usurpation of judicial power’ from which the petitioners had a
clear and indisputable right to relief,” and thus “it is unsurprising that the D.C Circuit was able to
deny the petition without engaging in any ‘meaningful analysis of Rule 6(e)’s terms.’” DOJ
Resp. at 3 (first quoting
Bankers Life & Cas. Co. v. Holland
,
DOJ also discounts
McKeever
’s analysis of
Haldeman
as mere dicta, contending that
McKeever
“did not rule on the meaning of the term ‘judicial proceeding,’” because “it was
undisputed that the historical grand jury information at issue fell entirely outside Rule 6(e).”
DOJ Resp. at 2. Again, DOJ is wrong.
McKeever
’s interpretation of
Haldeman
was “‘reasoning
essential’ to the Court’s holding.”
Apprendi v. New Jersey
,
we hold that the District Court did not abuse its discretion . . . .”), rather than straightforward approval of the decision below. The Haldeman Court did the latter. When queried about reconciling DOJ’s current position with its historical support of providing grand jury
materials to Congress for use in impeachment inquiries, DOJ responded that its position has “evolved.” Hr’g Tr. at
85:24. No matter how glibly presented, however, an “evolved” legal position may be estopped. “[W]here a party
assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary position . . . .”
New Hampshire v. Maine
, 532 U.S.
742, 749 (2001) (alteration in original) (internal quotation mark omitted) (quoting
Davis v. Wakelee
,
Most troubling, DOJ’s proposed reading of “judicial proceeding” raises constitutional
concerns. DOJ policy is that a sitting President cannot be indicted,
OLC Op.
, which policy
prompted the Special Counsel to abstain from “mak[ing] a traditional prosecutorial judgment” or
otherwise “draw[ing] ultimate conclusions about the President’s conduct.” Mueller Report at II-
8. This leaves the House as the only federal body that can act on allegations of presidential
misconduct. Yet, under DOJ’s reading of Rule 6(e), the Executive Branch would be empowered
to wall off any evidence of presidential misconduct from the House by placing that evidence
before a grand jury. Rule 6(e) must not be read to impede the House from exercising its “sole
Power of Impeachment.” U.S. C ONST . art. I, § 2, cl. 5;
cf. Trump v. Comm. on Oversight and
Reform of U.S. House of Representatives
,
* * *
its longstanding position regarding whether impeachment trials are “judicial proceedings” and whether
Haldeman
so
held. In
Haldeman
itself, the special prosecutor argued for disclosure of the grand jury materials and “represented
that this disclosure of the grand jury material to the House Judiciary Committee and eventually possibly to the
House and Senate [was] being made ‘preliminarily to (and) in connection with a judicial proceeding.’”
Haldeman
,
As the foregoing analysis shows, a Senate impeachment trial is a “judicial proceeding” within the meaning of Rule 6(e). Quod erat demonstrandum .
B. HJC’s Consideration of Articles of Impeachment is “Preliminarily To” an Impeachment Trial
Rule 6(e)(3)(E)(i)’s authorization of disclosure “preliminarily to or in connection with a
judicial proceeding” is “an affirmative limitation on the availability of court-ordered disclosure
of grand jury materials.”
Baggot
,
1. Governing Legal Principles Demonstrate That House Proceedings Can be
“Preliminarily To” a Senate Impeachment Trial
The Supreme Court has addressed the issue of how to apply Rule 6(e)’s “preliminarily
to” requirement only once, in
Baggot
. There, the Court addressed two situations—one that met
the “preliminarily to” requirement, and one that did not. First, the Supreme Court considered an
Internal Revenue Service (“IRS”) “audit of civil tax liability,” the purpose of which was “not to
prepare for or conduct litigation, but to assess the amount of tax liability through administrative
channels.”
Id.
This failed the “preliminarily to” test because, even “[a]ssuming
arguendo
that
this audit will inevitably disclose a deficiency,” “[t]he IRS’s decision is largely self-executing, in
the sense that it has independent legal force of its own, without requiring prior validation or
enforcement by a court.” at 481. By contrast, the Court discussed a second situation where
*45
“the IRS had closed its audit and issued a notice of deficiency, and the taxpayer had clearly
expressed its intention to seek redetermination of the deficiency in the Tax Court.”
Id.
at 483. In
that second situation, the Supreme Court explained the Seventh Circuit “correctly held . . . that
the IRS may seek [Rule 6(e)(3)(E)(i)] disclosure” because “[i]n such a case, the Government’s
primary purpose is plainly to use the materials sought to defend the Tax Court litigation, rather
than to conduct the administrative inquiry that preceded it.” (citing
In re Grand Jury
Proceedings (Miller Brewing Co.)
,
Between these two situations, a myriad of alternative circumstances is possible. The Supreme Court abstained, however, in footnote 6, from defining precisely “the level of likelihood of litigation that must exist before an administrative action is preliminary to litigation.” Id. at 482 n.6. In so doing, the Court acknowledged, in practical terms, how investigations evolve to reach the point of contemplating litigation, stating:
[a]s a general matter, many an investigation, begun to determine whether there has been a violation of law, reaches a tentative affirmative conclusion on that question; at that point, the focus of the investigation commonly shifts to ascertaining the scope and details of the violation and building a case in support of any necessary enforcement action.
Id . (emphasis in original). Given these practical realities, the Court declined to specify “how firm the agency’s decision to litigate must be before its investigation can be characterized as ‘preliminar[y] to a judicial proceeding,’” id . (alteration in original), noting that in the case before it, the Court was confronted with a “clear” case of the “IRS’s proposed use” being to “assess[] taxes rather than to prepare for or to conduct litigation,” id . at 483.
The D.C. Circuit similarly has had limited opportunity to consider application of the
“preliminarily to” requirement in Rule 6(e). Post-
Baggot
, the D.C. Circuit has made clear that “a
party requesting grand jury material must demonstrate that his ‘primary purpose’ for acquiring
*46
the material is preliminary to or in connection with a judicial proceeding.”
In re Sealed Motion
,
DOJ actually makes little effort to dispute that
if
an impeachment trial is a judicial
proceeding, the House’s consideration of articles of impeachment is “preliminary to” that
proceeding at least in some circumstances. DOJ Resp. at 26, n.15;
see id
. at 24–30. DOJ is wise
not to waste much energy on that argument. To the extent the House’s role in the impeachment
context is to investigate misconduct by the President and ascertain whether that conduct amounts
to an impeachable offense warranting removal from office, the House performs a function
somewhat akin to a grand jury.
See In re 1972 Grand Jury Report
,
Accordingly, just as a grand jury investigation is “preliminary to a possible criminal
trial,”
In re Grand Jury
,
2. HJC’s Primary Purpose is to Determine Whether to Recommend Articles of Impeachment
HJC’s investigation is in fact “preliminarily to” an impeachment trial because its primary purpose is to determine whether to recommend articles of impeachment. Before detailing how the record of House and HJC impeachment activities verifies this primary purpose, DOJ’s and Representative Collins’ proposed criteria for meeting the “preliminarily to” test are considered and, due to their critical shortcomings, rejected.
a. DOJ’s Proposed “Preliminarily To” Test is Contrary to
Baggot
Despite the clarity with which the Supreme Court “decline[d],”
Baggot
,
The line-drawing suggested by DOJ—requiring dual showings of the House’s intention
to pass articles of impeachment plus a guaranteed Senate impeachment trial—ignores first the
Supreme Court’s expressed appreciation that, even in the midst of an investigation, the focus can
shift to “building a case” and then qualify as preliminarily to “any necessary enforcement
action.”
Baggo
t,
DOJ also reasons that HJC’s proceedings
here
are not “preliminarily to” impeachment
because “the Committee’s actions thus far . . . at most amount to an exploratory inquiry where
*49
impeachment is one of many possible outcomes.” DOJ Resp. at 24. Even if DOJ were correct
that only some congressional committee investigations are “preliminarily to” an impeachment
trial,
see In re Uranium Grand Jury
,
b. No House “Impeachment Inquiry” Resolution is Required Relatedly, Representative Collins asserts that HJC’s investigation cannot be “preliminarily to” an impeachment trial until the full House passes a resolution authorizing a “formal impeachment proceeding.” Collins Mem. at 1. DOJ equivocates on this proposed bright line test to meet the “preliminarily to” requirement, Hr’g Tr. at 69:10–11, but seems to indicate that the House must go at least that far, see DOJ Resp. at 28. Like all bright-line rules, this “House resolution” test is appealing in terms of being easy to apply. Yet, the reasoning supporting this proposed test is fatally flawed. The precedential support cited for the “House resolution” test is cherry-picked and incomplete, and more significantly, this test has no textual support in the U.S. Constitution, the governing rules of the House, or Rule 6(e), as interpreted in binding decisions.
Turning first to the arguments that stem from precedent, DOJ and Representative Collins state that the “impeachments of Presidents Clinton and Andrew Johnson were investigated in multiple phases with each phase authorized by the House’s adoption of resolutions.” DOJ Resp. at 28; see also Collins Mem. at 9–12 (stating that for presidential impeachments, including the likely impeachment of President Nixon had he not resigned, “the full House voted to authorize impeachment proceedings”). Even were this statement accurate, which it is not, the manner in which the House has chosen to conduct impeachment inquiries encompasses more than past Presidents and no sound legal or constitutional reason has been presented to distinguish the House’s exercise of impeachment authority for a President from the exercise of such authority more generally.
Indisputably, the House has initiated impeachment inquiries of federal judges without a
House resolution “authorizing” the inquiry.
See, e.g.
, H.R. Rep. No. 101-36, at 13–16 (1988)
(describing proceedings with respect to Judge Walter Nixon leading up to HJC’s
recommendation of articles of impeachment, with no mention of an authorizing resolution); H.
R. Res. 320, 100th Cong. (as passed by the House Dec. 2, 1987) (authorizing taking of affidavits
and depositions during the impeachment investigation of Judge Hastings, without any formal
House resolution for an “impeachment inquiry”); H.R. Rep. No. 99-688, at 3–7 (1986)
(describing proceedings with respect to Judge Harry Claiborne leading up to HJC’s
*51
recommendation of articles of impeachment, with no mention of an authorizing resolution); 3
Deschler Ch. 14 § 5 (“In the case of Justice Douglas, the Committee on the Judiciary authorized
a special subcommittee to investigate the charges, without the adoption by the House of a
resolution specifically authorizing an investigation.”). Furthermore, federal judges have been
impeached
by the House without a House resolution “authorizing” an inquiry.
See
H.R. Res. 87,
101st Cong. (1989) (impeaching Judge Nixon); H.R. Res. 499 100th Cong. (1988) (impeaching
Judge Hastings); H.R. Res. 461, 99th Cong. (1986) (impeaching Judge Claiborne). In the course
of an impeachment proceeding against a federal judge, the House has also obtained grand jury
material to assist in an impeachment inquiry that was not “authorized” by a specific House
impeachment resolution.
See Hastings
,
Even in cases of presidential impeachment, a House resolution has never, in fact, been required to begin an impeachment inquiry. In the case of President Johnson, a resolution “authoriz[ing]” HJC “to inquire into the official conduct of Andrew Johnson” was passed after HJC “was already considering the subject.” 3 Hinds Ch. 75 § 2400. In the case of President Nixon, HJC started its investigation well before the House passed a resolution authorizing an impeachment inquiry. See 3 Deschler Ch. 14, § 15 (Parliamentarian’s Note) (noting that even before “the adoption of” the Nixon impeachment-inquiry resolution, “House Resolution 803,” HJC “had been conducting an investigation into the charges of impeachment against President Nixon,” such as by “hir[ing] special counsel for the impeachment inquiry”). In the case of President Clinton, the D.C. Circuit authorized the disclosure of grand jury materials to Congress *52 on July 7, 1998, see HJC App., Ex. Q, Order, In re Madison Guaranty Savings & Loan Assoc. , Div. No. 94-1 (D.C. Cir. Spec. Div. July 7, 1998) (per curiam), ECF No. 1-18, even though no impeachment resolution had yet been adopted and was not adopted by the House until four months later, see H. R. Res. 525, 105th Cong. (1998) (authorizing, on October 8, 1998, HJC to “investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach” President Clinton).
While close scrutiny of the historical record undercuts that justification for the “House
resolution” test proposed by Representative Collins, the more significant flaw with this proposal
is as follows: while this test may address political legitimacy concerns, which are best resolved
in the political arena, no governing law requires this test—not the Constitution, not House Rules,
and not Rule 6(e), and so imposing this test would be an impermissible intrusion on the House’s
constitutional authority both to “determine the rules of its proceedings” under the Rulemaking
Clause, U.S. C ONST ., Art. I, § 5, cl. 2, and to exercise “the sole power of Impeachment” under
the Impeachment Clause,
id.
§ 2, cl. 5. This Court “ha[s] no authority to impose,” by judicial
order, a particular structure on House proceedings.
Mazars
,
Representative Collins shifts gears with an alternative challenge to HJC’s petition, contending that, even if no House rule prohibits HJC from beginning an impeachment investigation without a House resolution, the House has not “delegate[d] such authority to the Committee,” and HJC has no powers except those expressly granted to it. Collins Mem. at 6. Pressing this point, he argues that the House has thus far delegated only “legislative and oversight authority to the Committee,” not “impeachment authority,” id . at 5, and, further, that the Speaker of the House may not “unilaterally delegate to the Committee the House’s impeachment power,” id . at 13–14. These contentions are, at worst, red herrings and, at best, incorrect.
At the outset, the distinction drawn by Representative Collins between Congress’s
“legislative and oversight authority” and Congress’s “impeachment authority,” is not so rigid as
he makes out. Nothing “in the Constitution or case law . . . compels Congress to abandon its
legislative role at the first scent of potential illegality and confine itself exclusively to the
impeachment process.”
Mazars
,
As to Representative Collins’ last point regarding the Speaker’s statement, HJC never claims that the Speaker possesses the power to authorize an impeachment inquiry solely by saying so. Rather, HJC points to the Speaker’s statement as evidence of the primary purpose of HJC’s investigation. The Speaker’s statement is, in fact, highly probative evidence on that score. [40] Even DOJ does not dispute that statements made by the House Speaker may be *55 probative in evaluating the “primary purpose” of HJC inquiries, as DOJ too has relied on the Speaker’s statements in its arguments about satisfaction of the “preliminarily to” requirement. See DOJ Resp. at 3, 26–27.
c. The Record of House and HJC Impeachment Activities Here Meets the “Preliminarily To” Test
Having dispatched DOJ’s and Representative Collins’ unsupported criteria for meeting
the “preliminarily to” test, examination of the record before the Court is essential to assess
whether HJC has satisfied the actual inquiry:
Baggot
’s “primary purpose” test. As HJC explains,
the purpose of HJC’s investigation and the requested disclosure is “to determine whether to
recommend articles of impeachment,” HJC App. at 3, and the record evidence supports that
claim. Determining whether to recommend articles of impeachment may not have been the
primary purpose of HJC’s investigation initially, but that is of no moment. “Congress’s decision
whether, and if so how,” to act “will necessarily depend on what information it discovers in the
course of an investigation, and its preferred path forward may shift as members educate
themselves on the relevant facts and circumstances.”
Mazars
,
The beginnings of HJC’s current investigation trace to January 3, 2019, when a resolution calling for President Trump’s impeachment was introduced, see H.R. Res. 13, 116th Cong. (2019), and, in keeping with standard practice, then referred to HJC for consideration, 165 Cong. Rec. H201, H211 (daily ed. Jan. 3, 2019) (referring H.R. Res. 13 to HJC). This resolution requirement, but to the issue of whether HJC has shown a “particularized need” for the redacted grand jury materials in the Mueller Report. As to the “preliminarily to” requirement, the Ukrainian developments simply underscore that the investigations currently proceeding in the House may lead to a Senate impeachment trial.
remains under review before HJC. See All Actions H.Res.13 — 116th Congress (2019-2020), https://www.congress.gov/bill/116th-congress/house-resolution/13/all-actions.
HJC turned to the subject of impeachment in earnest after the release of the Mueller Report. On June 6, 2019, HJC issued a report that accompanied a resolution recommending that AG Barr be held in contempt of Congress for failing to comply with a subpoena for production of the unredacted Mueller Report and underlying materials. See H.R. Rep. No. 116-105 (2019) (“Contempt Report”). That Contempt Report explained that among the “purposes” of HJC’s “investigation into the alleged obstruction of justice, public corruption, and other abuses of power by President Donald Trump” was to “consider[] whether any of the conduct described in the Special Counsel’s Report warrants the Committee in taking any further steps under Congress’ Article I powers,” “includ[ing] whether to approve articles of impeachment with respect to the President.” at 13.
Significantly, on June 11, 2019, the full House voted to ensure HJC possessed the authority needed to continue this investigation. The House approved, by a vote of 229 to 191, a resolution allowing HJC “to petition for disclosure of information” related to the Mueller Report— i.e. , to bring the instant action. H.R. Res. 430, 116th Cong. (2019). House Resolution 430 expressly authorized HJC to bring a petition pursuant to Rule 6(e)’s “‘preliminarily to . . . a judicial proceeding’” exception, id. (omission in original) (quoting F ED . R. C RIM . P. 6(e)(3)(E)(i)), and, as noted above, granted HJC, in connection with that authorization, “ any and all necessary authority under Article I of the Constitution,” id. (emphases added).
By July, HJC’s investigation had become focused on the impeachment power, as expressed in a July 11, 2019 memorandum issued by HJC Chairman Nadler explaining that HJC is “determin[ing] whether the Committee should recommend articles of impeachment against the *57 President or any other Article I remedies, and if so, in what form.” HJC App., Ex. A, Jerrold Nadler, Chairman, H. Comm. on the Judiciary, Memorandum Re: Hearing on “Lessons from the Mueller Report, Part III: ‘Constitutional Processes for Addressing Presidential Misconduct ’” at 3 (July 11, 2019), ECF No. 1-2. At a hearing held the next day, Chairman Nadler further stated that HJC’s “responsibility” was “to determine whether to recommend articles of impeachment against the President,” noting that “articles of impeachment are under consideration as part of the Committee’s investigation.” HJC App., Ex. T, Lessons from the Mueller Report, Part III: “Constitutional Processes for Addressing Presidential Misconduct”: Hearing Before the H. Comm. on the Judiciary at 4 (July 12, 2019), ECF No. 1-21 (capitalization altered). On September 12, 2019, HJC adopted a resolution confirming that the purpose of its investigation is “to determine whether to recommend articles of impeachment with respect to President Donald J. Trump.” DOJ Resp., Ex. 11, Comm. on the Judiciary, Resolution for Investigative Procedures at 4 (Sept. 12, 2019), ECF No. 20-11.
Finally, on September 24, 2019, House Speaker Nancy Pelosi announced that the full House is “moving forward with an official impeachment inquiry.” Pelosi Tr. “For the past several months,” Speaker Pelosi explained, the House had been “investigating in our Committees and litigating in the courts so the House can gather all of the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity, approval of articles of impeachment.” Thus, Speaker Pelosi “direct[ed]” the “six Committees”—including HJC—to “proceed with their investigations under that umbrella of impeachment inquiry” going forward. Id.
These indicia of HJC’s purpose sufficiently demonstrate that the primary purpose of the
investigation for which the grand jury disclosure is sought is to determine whether to recommend
*58
articles of impeachment against President Trump.
Cf. Mazars
,
Formulating a firm line on when, in the impeachment context, activities within the House meet the “preliminarily to” requirement to qualify for disclosure of grand jury material need not be drawn here, since this case is clear. Collectively, the record shows an evolving and deliberate investigation by HJC that has become focused on determining whether to impeach the President and thus has crossed the “preliminarily to” threshold.
3. Requiring More Than the Current Showing by HJC, as DOJ Demands, Would Improperly Intrude on Article I Powers Granted to House of Representatives
DOJ urges this Court to second-guess a co-equal branch of government and find that the
steps taken by the House fall short of showing a primary purpose of undertaking an impeachment
inquiry that would meet the “preliminarily to” requirement in Rule 6(e)(3)(E)(i). In so doing,
*59
DOJ again invites an impermissible intrusion on the House’s constitutional authority under the
Rulemaking and Impeachment Clauses. These Article I grants of exclusive authority require a
degree of deference to the House’s position that the House and HJC are currently engaged in an
investigation with the primary purpose of assessing whether to adopt articles of impeachment.
See Vander Jagt,
At the same time, HJC has argued that complete and absolute deference is due to the
House and HJC not only in structuring but also in articulating the purpose of the current inquiry.
Hearing Tr. at 25:23–26:4;
see also
HJC App. at 30–31. HJC’s position goes too far, at least as
to judicial review of HJC’s “primary purpose.” Rule 6(e), and the Supreme Court’s cases
interpreting it, grant this Court authority, and indeed a responsibility, to verify that HJC seeks
disclosure of the grand jury material for use in an inquiry whose core aim is assessing possible
articles of impeachment. The preceding review of the factual record and finding about HJC’s
“primary purpose” fulfill that responsibility of judicial review without intruding on the House’s
ability to write its own rules or to exercise its power of impeachment.
See Morgan v. United
States
,
Additionally, DOJ’s position that no disclosure of grand jury information to a House
impeachment inquiry is permitted under Rule 6(e),
see
DOJ Resp. at 13–19, would completely
bar access to relevant grand jury materials. Such a blanket bar would have concrete
repercussions on limiting the House’s access to investigative materials and thereby
impermissibly impede the House’s ability to exercise its constitutional power of impeachment.
The House, through the committees tasked with conducting an impeachment investigation, must
develop a factual record supporting at least a good-faith basis for believing that the President has
engaged in conduct meeting the constitutional requirement of a “high crime” or “misdemeanor”
before voting in favor of articles of impeachment targeting such conduct.
Cf. Kaley v. United
States
,
Blocking access to evidence collected by a grand jury relevant to an impeachment inquiry, as DOJ urges, undermines the House’s ability to carry out its constitutional responsibility with due diligence. On the other hand, interpreting Rule 6(e) in a manner compatible with this constitutional responsibility avoids this conundrum, and ensures HJC has *61 access to the pertinent information before making an impeachment recommendation to the full House.
4. DOJ’s Remaining Objections are Unpersuasive DOJ’s remaining arguments are easily dispatched. DOJ asserts that “the full House in the current Congress has already voted overwhelmingly against impeachment,” DOJ Resp. at 25 (emphasis added), because House Resolution 498, which called for an impeachment inquiry based on “President Trump’s racist comments,” H.R. Res. 498, 116th Cong. (2019), was “defeated 332-95,” DOJ Resp. at 25. Yet, the fact that House Resolution 498 was tabled, see All Actions, H.Res.498 — 116th Congress (2019-2020), https://www.congress.gov/bill/116th- congress/house-resolution/498/all-actions?actionsSearchResultViewType=compact, has little relevance here since that resolution has nothing to do with the concerns of the current impeachment inquiry, which is focused on the President’s possible criminal conduct described in the Mueller Report and in connection with Ukraine.
Next, DOJ claims that HJC’s “primary purpose” is to decide among different possible
actions to “pursue in response to the Mueller Report,” such as “various legislative proposals,
Constitutional amendments, and a Congressional referral to the Department of Justice for
prosecution or civil enforcement.” DOJ Resp. at 26. DOJ is correct that deciding whether to
recommend articles of impeachment may not always have been—and still may not be—the only
purpose of HJC’s current investigation, but that is to be expected. “As the Supreme Court has
explained, ‘[t]he very nature of the investigative function—like any research—is that it takes the
searchers up some “blind alleys” and into nonproductive enterprises.’”
Mazars
, 2019 WL
5089748, at *21 (alteration in original) (quoting
Eastland v. U.S. Servicemen’s Fund
, 421 U.S.
491, 509 (1975)). Here, HJC began, appropriately, with a broad inquiry, but focused on
impeachment as the investigation progressed. This new focus does not necessitate that HJC
*62
forgo its other aims.
See Mazars
,
Finally, DOJ cautions that if introduction of articles of impeachment by a single Member of Congress were sufficient to render an HJC investigation “preliminarily to” an impeachment trial, grand jury information would become “politicized.” Hr’g Tr. at 70:6; see also DOJ Resp. at 28. That hypothetical situation is far removed from this case, where HJC is months into its investigation and both the Speaker of the House and HJC have confirmed that the current investigation’s purpose is to determine whether to recommend articles of impeachment against President Trump. Besides, this “slippery slope” may be less precipitous than DOJ suggests, for a congressional committee seeking to obtain grand jury information based solely on a single Member’s introduction of articles of impeachment would have an uphill battle demonstrating a “particularized need” for the materials.
* * *
In sum, HJC has presented sufficient evidence that its investigation has the primary purpose of determining whether to recommend articles impeachment and thus has satisfied Rule 6(e)’s “preliminarily to . . . a judicial proceeding” requirement.
C. HJC Has a “Particularized Need” for the Requested Materials
Finally, to meet the last “independent prerequisite[] to ([E])(i) disclosure,” HJC needs to
“show particularized need for access to” the requested grand jury materials,
Baggot
, 463 U.S. at
*63
480;
In re Sealed Case
,
The “particularized need” standard requires a showing that (1) the requested materials are
“needed to avoid a possible injustice in another judicial proceeding; (2) the need for disclosure is
greater than the need for continued secrecy; and (3) the request is structured to cover only
material so needed.”
In re Sealed Case
,
Ultimately, determinations of “particularized need” are committed to the “considered
discretion of the district court.”
Douglas Oil
,
Adopting that proposal, to which DOJ has not objected, the Court finds that HJC has demonstrated a “particularized need” for the material in the first and second categories. DOJ must promptly produce to HJC the grand jury material redacted from and cited in the Mueller Report. HJC may file further requests articulating its “particularized need” for any grand jury material in category three.
1. Disclosure is Necessary to Avoid Possible Injustice
HJC asserts that it needs the material to conduct a fair impeachment investigation based
on all relevant facts.
See
HJC App. at 34. In authorizing disclosure of grand jury material for
use in impeachment investigations of judges and of a President, courts have found this “interest
in conducting a full and fair impeachment inquiry” to be sufficiently particularized.
Hastings
,
Impeachment based on anything less than all relevant evidence would compromise the
public’s faith in the process.
See Hastings
,
First, several “portions of the Mueller Report” are of particular interest to HJC, including the Trump Tower Meeting, Carter Page’s trip to Moscow, Paul Manafort’s sharing of internal polling data with a Russian business associate, and the Seychelles meeting, as well as information about what candidate Trump knew in advance about Wikileaks’ dissemination in July 2016 of stolen emails from democratic political organizations and the Clinton Campaign. *66 See HJC App. at 35–36 . Rule 6(e) material was redacted from the descriptions of each of these events in the Mueller Report and access to this redacted information is necessary to complete the full story for HJC. In some instances, without access to the redacted material, HJC cannot understand what the Special Counsel already found about key events. For example, what appears to be a citation to grand jury material supports the investigative finding that then- candidate Trump asked Manafort for continued updates about WikiLeaks’s plans to release hacked documents. See Mueller Report at II-18 n.27.
Second, numerous individuals have already testified before or given interviews with HJC
or other House committees about the events noted above that are central to the impeachment
inquiry and also described in the Mueller Report.
[44]
These witnesses include Donald Trump, Jr.,
Carter Page, Erik Prince, Steve Bannon, and Corey Lewandowski.
[45]
Of concern is that another
witness who spoke to both the Special Counsel and to Congress, Michael Cohen, has already
been convicted of making false statements to Congress, Mueller Report at I-195–96, and two
other individuals have been convicted of making false statements to the FBI in connection with
the Special Counsel’s investigation,
see id.
at I-192 (Papadopoulos);
id.
at I-194 (Flynn). The
record thus suggests that the grand jury material referenced or cited in the Mueller Report may
be helpful in shedding light on inconsistencies or even falsities in the testimony of witnesses
called in the House’s impeachment inquiry.
See
HJC App. at 37 (seeking the materials “to
*67
refresh or challenge th[e] testimony” of witnesses before Congress and “to corroborate [witness]
veracity”);
see also
Hr’g Tr. at 40:5–41:17 (HJC) (confirming that the grand jury material would
be used to impeach or corroborate witnesses).
[46]
Disclosure is thus necessary here to prevent
witnesses from misleading the House during its investigative factfinding.
See supra
Part III.B.3
(discussing the House’s factfinding role). As DOJ acknowledges, disclosure of grand jury
information “when necessary to avoid misleading a trier of fact” is a paradigmatic showing of
“particularized need.” DOJ Resp. at 18–19 (recognizing that requests under the “judicial
proceedings exception typically arose” in this situation and quoting
Douglas Oil
);
Douglas Oil
,
Third, HJC needs the requested material not only to investigate fully but also to reach a final determination about conduct by the President described in the Mueller Report. See HJC App. at 34 (requesting the material “to assess the meaning and implications of the Mueller Report”). [47] Given that the Special Counsel stopped short of a “traditional prosecutorial judgment” or any “ultimate conclusions about the President’s conduct,” Mueller Report at II-8, in part to avoid “preempt[ing] constitutional processes for addressing presidential misconduct,” id. at II-1; see also id. at 2 (“[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”), “the House alone can hold the President accountable for the conduct described,” HJC Reply at 19. HJC cannot fairly and diligently carry out this responsibility without the grand jury material referenced and cited in the Mueller Report. Put *68 another way, HJC requires the grand jury material to evaluate the bases for the conclusions reached by the Special Counsel.
Critically, for example, the Mueller Report states: “The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.” Mueller Report at II-2. The grand jury material relied on in Volume II is indispensable to interpreting the Special Counsel’s evaluation of this evidence and to assessing the implications of any “difficult issues” for HJC’s inquiry into obstruction of justice. The same is true of the material redacted from Appendix C, which details the Special Counsel’s unsuccessful efforts to interview the President directly, the Special Counsel’s choice not to issue a grand jury subpoena for the President’s testimony, and related information redacted for grand jury secrecy. See Mueller Report App’x C-1–C-2.
Complete information about the evidence the Special Counsel gathered, from whom, and in what setting is indispensable to HJC. The recent revelation that two individuals who figured prominently in events examined in the Mueller Report—Don McGahn and Donald Trump, Jr. — were not compelled to testify before the grand jury illustrates this point. See Revised ADAG Decl. ¶ 4. The choice not to compel their testimony may indicate, for example, that the Special Counsel intended to leave aggressive investigation of certain potential criminal conduct, such as obstruction of justice by the President, to Congress. That intention should inform HJC’s investigation of those same issues. The grand jury material redacted from and cited in the Report may provide other significant insights into the Special Counsel’s use of, or decisions not to use, the grand jury. Those insights may be essential to HJC’s decisions about witnesses who should be questioned and about investigatory routes left unpursued by the Special Counsel that should be pursued by HJC prior to a final determination about impeachment.
Similarly, disclosure is necessary to assist HJC in filling, or assessing the need to fill, acknowledged evidentiary “gaps” in the Special Counsel’s investigation. See supra Part I.A. The Report detailed or alluded to investigative choices by the Special Counsel about immunity, about privilege, about pursuit of hard-to-get evidence, and other matters. As described earlier, these choices had an impact on the quantity and quality of evidence gathered about events of interest to HJC, including the Trump Tower Meeting, Carter Page’s trip to Moscow, Erik Prince’s Seychelles meeting, and potential tampering of Michael Cohen’s testimony to Congress. See supra Part I.A. The Special Counsel helpfully documented those impacts, identifying critical factual disputes his investigation left unresolved and pointing to potential criminal violations that went uncharged due at least in part to gaps in evidence. See supra Part I.A. HJC thus needs the grand jury material redacted from and cited in the Report to pursue evidence that the Special Counsel did not gather and to resolve questions—including the ultimate question whether the President committed an impeachable offense—that the Special Counsel simply left unanswered.
In a last gasp effort to deny HJC access to the requested grand jury information, DOJ
argues that HJC cannot show “particularized need” because other sources, such as the public
version of the Mueller Report, the other categories of material redacted from the Mueller Report,
congressional testimony, and FBI Form 302 interview reports (“FBI-302s”), can supply the
requisite information.
See
DOJ Resp. at 31–34. As the preceding discussion makes abundantly
clear, this argument gets the basic relationship between HJC’s and the Special Counsel’s
investigations backwards: the overlap between these investigations enhances, rather than detracts
from, HJC’s showing of “particularized need.”
Cf. In re Grand Jury Proceedings GJ-76-4 &
GJ-75-3
,
Furthermore, the sources DOJ identifies cannot substitute for the requested grand jury materials. To insure most effectively against being misled, HJC must have access to all essential pieces of testimony by witnesses, including testimony given under oath to the grand jury. Additionally, for purposes of assessing and following up on the Mueller Report’s conclusions, the full Report is needed: the grand jury material may offer unique insights, insights not contained in the rest of the Report, congressional testimony, or FBI-302 reports.
Finally, DOJ claims that “[a] finding of ‘particularized need’ is especially inappropriate”
because HJC “has not yet exhausted its available discovery tools”—namely, waiting for DOJ to
fulfill its promised production of FBI interview reports and using congressional subpoenas. DOJ
Resp. at 32–33 (citing
In re Grand Jury 89-4-72
,
Regarding DOJ’s production of FBI-302s, “the bottom line,” as HJC put it, is that some 302s have so far been produced by DOJ but not “the ones of most interest.” HJC Resp. to DOJ *71 Second Supp. at 4, ECF No. 41. Although DOJ at first “anticipate[d] making the remaining FBI-302s available,” DOJ First Supp. at 3, DOJ now says it “may need to amend the . . . agreement” because of a letter the White House sent to congressional leadership on October 8, see DOJ Second Supp., Second Decl. of ADAG Bradley Weinsheimer (“Second ADAG Decl.”) ¶ 6, stating that “President Trump and his Administration reject [the House’s] baseless, unconstitutional efforts to overturn the democratic process” and “cannot participate in [the House’s] partisan and unconstitutional inquiry,” Letter from Pat A. Cipollone, Counsel to the President, to Representative Nancy Pelosi, Speaker of the House, et al. (Oct. 8, 2019) at 2. The letter’s announced refusal to cooperate extends to congressional subpoenas, which the President himself had already vowed to “fight[].” Remarks by President Trump Before Marine One Departure , W HITE H OUSE (Apr. 24, 2019), https://www.whitehouse.gov/briefings- statements/remarks-president-trump-marine-one-departure-39/ (“Well, we’re fighting all the subpoenas.”).
The White House’s stated policy of non-cooperation with the impeachment inquiry weighs heavily in favor of disclosure. Congress’s need to access grand jury material relevant to potential impeachable conduct by a President is heightened when the Executive Branch willfully obstructs channels for accessing other relevant evidence.
2. The Need for Disclosure Outweighs the Need for Continued Secrecy
Any “considerations justifying” continued grand jury “secrecy bec[a]me less relevant”
once the Special Counsel’s investigation, and attendant grand jury work, concluded.
Douglas
Oil
,
Once a grand jury has ended, the primary purpose of secrecy is safeguarding future grand
juries’ ability to obtain “frank and full testimony.”
Douglas Oil
,
Certainly, a continued interest in protecting from “public ridicule” individuals
investigated but not indicted by the grand jury persists even when a grand jury has ended.
Douglas Oil
,
DOJ argues that ongoing criminal matters referred by the Special Counsel’s Office for investigation or prosecution are the chief reason for continued secrecy. See DOJ Resp. at 36–37 (citing, inter alia , Mueller Report App’x D (“Special Counsel’s Office Transferred, Referred, and Completed Cases”)). That DOJ has already disclosed to certain Members of the House the material redacted from the Mueller Report to prevent harm to ongoing matters, see DOJ Resp. at 8; see also Hr’g Tr. at 4:4–4:11, undercuts this claim that continued secrecy of the grand jury material is required to protect any ongoing investigations or cases. HJC has nevertheless made clear that it has “no interest whatsoever in undermining any ongoing criminal proceedings” and has expressed willingness to negotiate with DOJ about disclosure of any grand jury information *74 that DOJ believes could harm ongoing matters. Hr’g Tr. at 45:2–45:11. The Court expects that any such negotiations between the parties would be limited to the six redactions for grand jury information in Volume I of the Report that DOJ has already identified as presenting potential harm to ongoing matters. See Second ADAG Decl. ¶ 3.
* * *
The need for continued secrecy is minimal and thus easily outweighed by HJC’s
compelling need for the material. Tipping the scale even further toward disclosure is the public’s
interest in a diligent and thorough investigation into, and in a final determination about,
potentially impeachable conduct by the President described in the Mueller Report.
See In re
1972 Grand Jury Report
,
3. Scope of Disclosure Authorized
HJC has shown that it needs the grand jury material referenced and cited in the Mueller
Report to avoid a possible injustice in the impeachment inquiry, that this need for disclosure is
greater than the need for continued secrecy, and that the “request is structured to cover only
material so needed.”
Douglas Oil
,
IV. CONCLUSION
For the foregoing reasons, HJC’s application is granted. Consequently, DOJ is ordered to provide promptly, by October 30, 2019, to HJC all portions of the Mueller Report that were *75 redacted pursuant to Rule 6(e) and any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e). HJC is permitted to file further requests articulating its particularized need for additional grand jury information requested in the initial application.
An appropriate Order accompanies this Memorandum Opinion.
Date: October 25, 2019
__________________________ BERYL A. HOWELL Chief District Judge
Notes
[1] As noted, the Mueller Report is in two volumes, with each volume re-starting the page numbering. Thus, citations to this report use a nomenclature indicating the page number in either Volume I or Volume II.
[2] Then-Attorney General Jeff Sessions had recused himself “from any existing or future investigations of any
matters related in any way to the campaigns for President of the United States,” Press Release, U.S. Dep’t of Justice,
Attorney General Sessions Statement of Recusal (Mar. 2, 2017), making the Deputy Attorney General the “Acting
Attorney General, by operation of law” as to such matters,
In re Grand Jury Investigation
,
[3] Redactions in the Mueller Report were not applied by the Special Counsel’s Office but “by Department of Justice attorneys working closely together with attorneys from the Special Counsel’s Office, as well as with the intelligence community, and prosecutors who are handling ongoing cases.” William P. Barr, Attorney General, Department of Justice, Attorney General William P. Barr Delivers Remarks on the Release of the Report on the Investigation into Russian Interference in the 2016 Presidential Election (Apr. 18, 2019), https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-release-report-investigation- russian.
[4] The reason for the fewer grand jury–related redactions in Volume II addressing “questions about whether
[the President] had obstructed justice,” Mueller Report at II-1, becomes clear upon analysis. The introduction to this
part of the Mueller Report provides assurances that “we conducted a thorough factual investigation in order to
preserve the evidence when memories were fresh and documentary materials were available.”
Id
. at II-2. As the
Mueller Report highlights, “a President does not have immunity after he leaves office,” and, quoting DOJ policy, the
Report further observes that “an immunity from prosecution for a sitting President would not preclude such
prosecution once the President’s term is over or he is otherwise removed from office by resignation or
impeachment.”
Id
. at II-1 & n.4 (quoting
A Sitting President’s Amenability to Indictment and Criminal Prosecution
,
[5] Both Prince and Bannon testified before congressional committees. See Testimony of Erik Prince Before the H. Permanent Select Comm. on Intelligence , 115th Cong. (Nov. 30, 2017), https://docs.house.gov/meetings/IG/IG00/20171130/106661/HHRG-115-IG00-Transcript-20171130.pdf; H. P ERMANENT S ELECT C OMM . ON I NTELLIGENCE , TH C ONG ., S COPE OF I NVESTIGATION , M INORITY V IEWS at 11 (M ARCH 26, 2018), https://perma.cc/D9HE-AFUH (reporting on Steve Bannon’s testimony).
[6] Another example involves a July 2016 trip to Moscow by Carter Page, then a Trump Campaign official, who gave a speech in Moscow and represented in emails to other Campaign officials that he also spoke with Russian government officials. Mueller Report at I-96, I-98, I-101. Yet, “[t]he Office was unable to obtain additional evidence or testimony about who Page may have met or communicated with in Moscow; thus, Page’s activities in Russia . . . were not fully explained.” at I-101. This same paragraph reporting this gap in the evidence contains redacted references to grand jury material. See id .
[7] In his summary of the Mueller Report’s “principal conclusions,” AG Barr stated that “[t]he Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election,” Letter from William P. Barr to Lindsey Graham, et al., supra , at 2 (Mar. 24, 2019), and that “[t]he Special Counsel . . . did not draw a conclusion—one way or the other—as to” whether the “actions by the President . . . that the Special Counsel investigated” “constituted obstruction,” id. at 3. AG Barr determined that “[t]he Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions” left it to him as the Attorney General “to determine whether the conduct described in the report constitutes a crime,” and he “concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
[8] On February 22, 2019—before the Mueller Report was submitted to AG Barr but when media reporting suggested that the Special Counsel investigation was nearing its end—the House Committee Chairpersons had submitted a similar request to AG Barr, noting that “because the Department has taken the position that a sitting President is immune from indictment and prosecution, Congress could be the only institution currently situated to act on evidence of the President’s misconduct.” HJC App., Ex. B, Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, et al., to William P. Barr, Attorney Gen., Dep’t of Justice 2 (Feb. 22, 2019), ECF No. 1-3 (footnote omitted).
[9] On August 30, 2019, the Constitutional Accountability Center submitted an amicus brief in support of HJC’s application, see Br. of Constitutional Accountability Ctr. as Amicus Curiae in Support of HJC, ECF No. 16-1, and, on October 3, 2019, Representative Doug Collins, HJC’s Ranking Member, submitted an amicus brief urging denial of HJC’s application, see Mem. Amicus Curiae of Ranking Member Doug Collins in Support of Denial (“Collins Mem.”), ECF No. 35.
[10] As part of this supplemental briefing, DOJ was directed to provide its reasoning for redacting from public view, as grand jury material, portions of a declaration submitted by DOJ in support of its position that HJC’s application should be denied. See Min. Order (Oct. 8, 2019). This Court determined that the declaration had been improperly redacted and ordered DOJ to correct its error. In re Application of the Committee on the Judiciary , 2019 WL 5268929. DOJ complied with that order on October 20, 2019. See DOJ Notice.
[11] The definition of “a matter occurring before the grand jury” can also encompass information “that would
‘tend to reveal some secret aspect of the grand jury’s investigation, including” the “strategy” or future “direction of
the investigation,’”
Bartko v. U.S. Dep’t of Justice
,
[12] For instance, under Rules 6(e)(3)(A)(ii) and 6(e)(3)(D), the government may disclose grand jury material in certain circumstances without a court order but must provide notice of disclosure to the court that impaneled the grand jury. See F ED . R. C RIM . P. 6(e)(3)(B), (D)(ii). In March 2016, this Court instituted a system for docketing such notices received in this District, and since that time the government has submitted 783 notice letters. See In re Grand Jury Disclosures , 16-gj-1 (D.D.C. 2016) (184 notices); In re Grand Jury Disclosures , 17-gj-1 (D.D.C. 2017) (83 notices); In re Grand Jury Disclosures , 18-gj-1 (D.D.C. 2018) (244 notices); In re Grand Jury Disclosures , 19- gj-1 (D.D.C. 2019) (272 notices). This number undercounts the actual number of disclosures, given that a single notice often advises that grand jury information has been shared with multiple persons and entities. Among these
[16] An impeachment inquiry in the House may itself constitute a judicial proceeding.
See, e.g.
,
Marshall v.
Gordon
,
[17] DOJ relies on the definition first articulated by Judge Learned Hand in
Doe v. Rosenberry
,
[18] Even the Supreme Court, in Baggot , recognized that Tax Court proceedings are “judicial proceedings” under Rule 6(e). Although purporting not to address “the knotty question of what, if any, sorts of proceedings other than garden-variety civil actions or criminal prosecutions might qualify as judicial proceedings under ([E])(i),” 463 U.S. at 479 n.2, the Court advised that the Seventh Circuit “correctly held” that “the IRS may seek ([E])(i) disclosure” when a “taxpayer ha[s] clearly expressed its intention to seek redetermination of [a claimed tax] deficiency in the Tax Court” and “the Government’s primary purpose is . . . to defend the Tax Court litigation,” id. at 483.
[19] DOJ also cites to the use of “judicial proceeding” in two other subsections of Rule 6(e)—(e)(3)(F) and
(e)(3)(G)—as generally referring to court proceedings, DOJ Resp. at 17, but this argument relies on one of the least
probative statutory-interpretation presumptions. Although “[o]ne ordinarily assumes ‘that identical words used in
different parts of the same act are intended to have the same meaning,’” “the presumption of consistent usage
‘readily yields’ to context, and a statutory term . . . ‘may take on distinct characters from association with distinct
statutory objects calling for different implementation strategies.’”
Util. Air Regulatory Grp. v. EPA
,
[20] DOJ observes that impeachment trials of officials other than the President are presided over by “the Vice President or whichever Senator is presiding at that time,” rather than by the Chief Justice. DOJ Resp. at 16. This constitutional quirk is irrelevant here since the instant petition concerns the possible impeachment of the President.
[21] Although Representative Collins, like DOJ, supports denial of HJC’s application, he “agrees with [HJC] that an impeachment inquiry . . . fall[s] under Federal Rule of Criminal Procedure 6(e)’s judicial proceeding exception because” an impeachment inquiry is “preliminary to a trial in the U.S. Senate.” Collins Mem. at 1.
[22] Indeed, Hamilton’s discussion of the Senate’s impeachment power in Federalist Nos. 65 and 66, uses such judicial terms repeatedly and consistently. Hamilton referred to the “court,” the “court of impeachments,” and the “court for the trial of impeachments” a total of seventeen times. THE F EDERALIST N OS . 65–66, supra , at 396–407 (Alexander Hamilton). Moreover, when referring to impeachment, Hamilton also used the following additional terms associated with the judicial nature of the proceeding: “jurisdiction” once; “offense(s)” or “offender” five times; “prosecution” or “prosecutors” three times; “accused,” “accusers,” “accusation,” or “accusing” nine times; “case(s)” five times; “decision,” “decide,” or “deciding” eight times; “innocence” or “innocent” three times; “guilt” or “guilty” five times; “inquest,” “inquisitors,” or “inquiry” four times; “tribunal” twice; “judges” or “judging” ten times; “sentence” or “sentenced,” including “sentence of the law,” five times; “party” once; “punishment” or “punish” seven times; “conviction” once; “trial” or “try” four times, not counting instances of “courts for the trial of impeachments”; “verdict(s)” twice; “liable” once; and “charges” once. Id.
[23] The variation “high crime” similarly means “[a] crime that is very serious, though not necessarily a felony,” Crime , B LACK ’ S , and “high misdemeanor” historically meant in English law “[a] crime that ranked just below treason in seriousness,” Misdemeanor , B LACK ’ S .
[24] This analysis disposes of DOJ’s argument that an impeachment trial is not judicial in nature because
impeachment proceedings “are political.” DOJ Resp. at 16. While the House “has substantial discretion to define
and pursue charges of impeachment,”
Mazars
,
[25] Even earlier, in 1811, the House received a “copy of a presentment against [territorial judge] Harry
Toulmin, . . . made by the grand jury of Baldwin County, specifying charges against the said judge, which” “set in
motion” a House “inquiry” “looking to the impeachment” of Judge Toulmin. 3 Hinds Ch. 79 § 2488. Also, in 1921
a Senate committee confronted another allegation of election fraud, and because the committee’s investigation post-
dated a grand jury inquiry, the Senate committee had access to “everything before the grand jury which was deemed
at all relevant,” because the material had been introduced at trial to HJC. 6 Clarence Cannon,
Cannon’s Precedents
of the House of Representatives
Ch. 159 § 74 [hereinafter Cannon]. In these instances, the grand jury information
was presumably no longer secret, but Chief Judge Sirica nevertheless deemed the 1811 Judge Toulmin “precedent”
to be “persuasive” when he ordered disclosure of the Watergate grand jury report.
See In re Report &
Recommendation of June 6, 1972 Grand Jury
(
In re 1972 Grand Jury Report
),
[26] “In the absence of a clear legislative mandate, the Advisory Committee Notes [to the Federal Rules of
Criminal Procedure] provide a reliable source of insight into the meaning of a rule, especially when, as here, the rule
was enacted precisely as the Advisory Committee proposed.”
United States v. Vonn
,
[27] DOJ relies on a footnote from a prior decision of this Court, see DOJ Resp. at 14–15 (quoting In re Application to Unseal Dockets Related to the Independent Counsel’s 1998 Investigation of President Clinton , 308 F.
[31] At least two other circuits have reached the same conclusion.
See Patton v. C.I.R.
,
[32] The grand jury analogy is not perfect. See 145 Cong. Rec. S1586 (1999) (statement of Sen. Leahy) (noting that the analogy between the House and a grand jury is “loose” (quoting Background and History of Impeachment: Hearing Before the Subcomm. On the Constitution of the HJC , 105th Cong., XX S. Doc. 106-3 at 228 (statement of Laurence H. Tribe) (1998)). When the House decides whether to impeach, it functions as more than a “mere ‘accuser.’” Id. “The House’s constitutional responsibility for charging the President should not be misinterpreted to justify applying only a grand jury’s ‘probable cause’ standard of proof.” Id. at S1587. Rather, “House Members who vote to impeach should also be convinced th[e] President has so abused the public trust and so threatens the public that he should be removed.”
[33] Some of DOJ’s arguments regarding whether HJC meets the “preliminarily to” test have been mooted due to developments in the possible impeachment of President Trump since the pending application was filed. DOJ, for instance, initially argued that statements by the Speaker and the House Majority Leader showed that “the House Democratic caucus was ‘not even close’ to an ‘impeachment inquiry.’” DOJ Resp. at 27 (quoting Rep. Nancy Pelosi (D-CA) Continues Resisting Impeachment Inquiry , CNN (June 11, 2019), http://transcripts.cnn.com/TRANSCRI PTS/1906/11/cnr.04html). That may have been true in June, but not now, after the Speaker herself announced in September that the full House is “moving forward with an official impeachment inquiry.” Pelosi Remarks Announcing Impeachment Inquiry (Sept. 24, 2019), https://perma.cc/6EQM-34PT [hereinafter Pelosi Tr.].
[34] DOJ and Representative Collins offer only one argument for distinguishing presidential and judicial
impeachments: that the House “has delegated initial investigatory authority for impeachment to the U.S. Judicial
Conference through the passage of the Judicial Conduct and Disability Act of 1980.” Collins Mem. at 10 n.12
(citing 28 U.S.C. § 355(b));
see also
Hr’g Tr. at 83:21–84:23 (DOJ) (raising similar argument). Yet, during the
investigations of Judge Porteous and Judge Hastings, HJC did not rely on the Judicial Conference to furnish relevant
grand jury material but instead petitioned for and received relevant grand jury material directly from the courts
supervising the grand jury investigations of the judges at issue.
See Hastings
,
[35] DOJ and Representative Collins both agree that the events leading up to President Nixon’s resignation are relevant historical precedent for the purpose of the current inquiry, even though President Nixon left office before he could be impeached. See Hr’g Tr. at 71:13–19 (DOJ); Collins Mem. at 9–10.
[36] DOJ dismisses the example of the House’s impeachment of President Clinton, contending that the then- operative Independent Counsel Act provided independent authorization for disclosure of grand jury material to Congress. DOJ Resp. at 22–23. Putting aside whether DOJ correctly reads the now-lapsed independent counsel statute, this contention only confirms that full House impeachment resolutions have not been a necessary predicate for HJC to commence an impeachment investigation and obtain access to grand jury material to assist in that investigation.
[37] The distinction between Congress’ legislative and impeachment authority, even if otherwise sound, has questionable relevance to the Rule 6(e) analysis. The “preliminarily to” requirement depends on the “primary purpose” disclosure would serve, not the source of authority Congress acts under.
[38] Jefferson’s Manual is one of the “fundamental source material[s] for parliamentary procedure used in the House of Representatives.” Thomas J. Wickham, Constitution, Jefferson’s Manual, and Rules of the House Representatives of the United States One Hundred Fifteenth Congress at v (2017).
[39] Challenge to a specific committee action on grounds that HJC’s authority was in doubt would be
unreviewable. “[U]nless and until Congress adopts a rule that offends the Constitution,” judicial review of House
rules is inappropriate.
Mazars
,
[40] Citing Speaker Pelosi’s September 2019 statement, Representative Collins also argues that HJC’s investigation is not “preliminarily to” a Senate impeachment trial because the “impeachment inquiry” announced by the Speaker will “be handled by three other committees and focus ‘narrowly on the Ukraine matter’” rather than on allegations in the Mueller Report. Collins Mem. at 14 (quoting Rachael Blade and Mike DeBonis, Democrats Count on Schiff to Deliver Focused Impeachment Inquiry of Trump , W ASH . P OST (Sept. 29, 2019), https://www.washington post.com/politics/pelosi-turns-to-schiff-to-lead-house-democrats-impeachment-inquiry-of-trump/2019/09/ 28/ed6c4608-e149-11e9-8dc8-498eabc129a0_story.html). This argument is misguided, first, because Speaker Pelosi made clear that “six [c]ommittees”—including HJC—would “proceed with their investigations under that umbrella of impeachment inquiry,” Pelosi Tr., and thus HJC plainly remains engaged. Second, the current focus on President Trump’s interactions with the foreign leader of Ukraine is pertinent, not to the “preliminarily to”
[41] Although neither the Supreme Court nor the D.C. Circuit has considered the justiciability of, or the degree of deference due in, cases implicating the House’s “sole power of Impeachment,” U.S. C ONST ., Art. I, § 2, cl. 5, verifying that the factual record supports HJC’s assertion about its “primary purpose” does not require direct judicial review of any actions by the House taken pursuant to the impeachment power.
[42] To repeat, the topics in the third category of requested grand jury materials are: (A) “President Trump’s knowledge of efforts by Russia to interfere in the 2016 U.S. Presidential election;” (B) his “knowledge of any direct or indirect links or contacts between individuals associated with his Presidential campaign and Russia, including with respect to Russia’s election interference efforts;” (C) his “knowledge of any potential criminal acts by him or any members of his administration, his campaign, his personal associates, or anyone associated with his administration or campaign;” and (D) “actions taken by McGahn during the campaign, the transition, or McGahn’s period of service as White House Counsel.” HJC App. at 25. Material is related directly to President Trump’s knowledge, HJC says, if it reflects “what witnesses saw or heard President Trump do.” Hr’g Tr. at 7:5–7:6.
[43] At the time, DOJ similarly recognized that “[t]he ‘need’ for the House to be able to make its profoundly
important judgment on the basis of all available information is as compelling as any that could be conceived.” HJC
App., Ex. P, Mem. for the U.S. on behalf of the Grand Jury,
In re 1972 Grand Jury Report
,
[44] In particular, the activities of the House Permanent Select Committee on Intelligence (“HPSCI”) are relevant here because HJC’s protocols for handling the grand jury information, discussed infra , state that the information will be shared with Members of HPSCI. See HJC App., Ex. X, Jerrold Nadler, Chairman, HJC, [HJC] Procedures for Handling Grand Jury Information (“GJ Handling Protocols”) ¶ 11, ECF No. 1-25. With HJC, HPSCI is one of the six committees conducting the impeachment inquiry. See Pelosi Tr.
[45] See DOJ Resp. at 34 & n.23 (noting testimony by Trump Jr., Page, Bannon, and Prince and citing Minority Views, HPSCI Report, https://intelligence.house.gov/uploadedfiles/20180411_-_final_- _hpsci_minority_views_on_majority_report.pdf); Thursday: House Judiciary to Consider Procedures Regarding Whether to Recommend Impeachment, C OMM . ON THE J UDICIARY (Sept. 9, 2019), https://judiciary.house.gov/news/press-releases/thursday-house-judiciary-consider-procedures-regarding-whether- recommend (Lewandowski).
[46] In identifying this need, HJC’s application focused on the example of Don McGahn, see HJC App. at 37, but DOJ has now confirmed that McGahn did not testify before the grand jury, see Revised ADAG Decl. ¶ 4.
[47] As HJC confirmed at the hearing, the recent revelations related to Ukraine have not displaced HJC’s focus on investigating the conduct described in the Mueller Report. See Hr’g Tr. at 30:25–32:22.
[48] DOJ has produced redacted FBI-302s for only seventeen of the thirty-three individuals promised. DOJ’s Supplemental Submission Regarding Accommodation Process (“DOJ First Supp.”) at 3, ECF No. 37.
[49] DOJ concedes that the requests for the material referenced or cited in the report are properly structured. See DOJ Resp. at 37–38 (challenging only the structure of HJC’s request for material in category three).