Impeachment proceedings may also give the judiciary committee a stronger case for obtaining certain materials protected from disclosure by statute, like the grand jury materials from Special Counsel Robert Mueller’s investigation. Under Rule 6(e) of the Federal Rules of Criminal Procedure, certain people—including the government attorney presenting the case—involved in a grand jury proceeding “must not disclose a matter occurring before the grand jury.” There are certain exceptions in the statute that would allow a judge to authorize disclosure for certain specified purposes, including “preliminarily to or in connection with a judicial proceeding.”
As we wrote on Lawfare last month, there is some historical precedent for the House judiciary committee to obtain such information from the court—most notably in the context of the Watergate impeachment proceedings. The relevant court opinion relied largely on a theory of inherent judicial authority, rather than an exception in statute, to turn the Watergate “road map” over to the House judiciary committee.
But on April 5, the U.S. Court of Appeals for the D.C. Circuit ruled that judges don’t have inherent authority to release grand jury materials and must instead rely solely on exceptions outlined in Rule 6(e). So if the committee wishes to access that information, Nadler will likely need to convince the judge overseeing the Mueller grand jury that release of materials to the committee is “preliminarily to or in connection with a judicial proceeding.” Bottom line: It is easier to argue that an open impeachment proceeding is akin to a “judicial proceeding” than it is to argue that any run-of-the-mill oversight activities are preliminary to a judicial proceeding.
There are also important questions about whether impeachment proceedings would produce compliance with congressional subpoenas—by either the executive branch or the courts.
The White House’s principal justification for its current stonewalling strategy for ongoing House investigations would not be relevant in the context of impeachment. On April 24, the president told reporters, “We’re fighting all of the subpoenas,” and Cipollone’s May 15 letter supplies various legal arguments in support of this approach. First, the letter relies heavily on the argument that there is no legitimate “legislative purpose” for the request. (Congress’s general investigative powers are derived from its power to legislate.) Whatever the merits of this argument, it would simply not be relevant in the context of impeachment proceedings, because the power to impeach is contained in an entirely separate and discrete section of the U.S. Constitution.
Second, the letter argues that even if a legitimate legislative purpose can be articulated, committees have limited authority to explore in detail any particular case of alleged wrongdoing, because Congress does not need such details in order to craft legislative fixes. Again, this would likewise not be relevant in the context of impeachment proceedings. The decision of whether to impeach requires the development of a detailed, backward-looking factual record of specific conduct by the president. While it is of course possible the White House could come up with different theories for stonewalling in the context of impeachment proceedings, these two arguments would fall away, leaving only arguments related to executive privilege to be made before the courts.
Beyond the substance, it’s unclear whether courts would consider and decide such cases more quickly in the context of impeachment proceedings than similar cases pursued under the Congress’s investigative authority. One district court judge expedited consideration of one of the current investigative impasses—the House oversight and reform committee’s quest for Trump’s financial and accounting records from Mazars—and ruled in favor of the committee. Trump has already appealed the case, and it is unclear how long this appeal and similar appeals will take. Moreover, the case does not involve any claims of executive privilege. Sorting out the scope of executive privilege is the most thorny and time-consuming issue in cases involving congressional requests for information from the executive branch.
We think it is entirely possible—probable even—that judges would recognize the primacy of impeachment proceedings against the president of the United States and expedite consideration of such cases. The case of U.S. v. Nixon—in which the Supreme Court ruled that the president had to turn over the infamous Oval Office recordings to the special prosecutor—was decided just over three months after the relevant grand jury subpoena had been issued. That was a criminal investigation, so the analogy is not entirely apt, but we think it reasonable to assume courts would take a similarly expeditious view in the context of a subpoena issued pursuant to impeachment proceedings. Of course, it is worth remembering that the Supreme Court has never decided a case concerning a congressional subpoena for information issued to an executive branch official where the president has asserted executive privilege. In theory, the Supreme Court could decide the issue is a political question and leave it to the other two branches to sort out in some other way.
