Jerry Nadler’s Mueller report subpoena isn’t legit without impeachment inquiry – Washington Examiner

The House Judiciary Committee on Wednesday exceeded its bounds in issuing a subpoena for the full report from special counsel Robert Mueller on Russian skullduggery concerning the 2016 elections.

Attorney General William Barr should release as much of the Mueller report as possible, as soon as possible, because the public has a right to see what all the fuss was about. Yet if he determines that some information within it is either classified or subject to grand jury secrecy rules, he is duty-bound to redact it. Unless Congress passes, and President Trump signs, a new law waiving grand jury secrecy rules, then existing laws protecting that secrecy should take legal precedence over Congress’ subpoena authority.

This is decidedly not a similar situation to the 1998 investigation of, and eventual impeachment of, then-President Bill Clinton. That investigation was led not by a special counsel, which is what Robert Mueller was, but by an independent counsel, Kenneth Starr. The difference is significant.

Under the independent counsel statute, which has since lapsed (and always was of dubious constitutionality anyway), such counsels were creatures of, and reported to, Congress. They existed independent of, and separate from, the ordinary lines of authority within the Justice Department and the executive branch. When House Speaker Newt Gingrich and company made the foolish decision to post the full Starr report immediately on the Internet, they had full power to do so because Starr’s report was specifically theirs to use as they saw fit.

Special counsels are different. Special counsels, while enjoying a modicum of separation from ordinary lines of authority in the Justice Department, are nonetheless still ultimately part of the department and the executive branch as a whole. They report to the attorney general (or his designee), and they must follow all ordinary rules of civil and criminal procedure.

Under Federal Rule of Criminal Procedure 6(e), neither the attorney for the government nor anyone else may “disclose a matter occurring before the grand jury.” The exceptions involve disclosure to another federal grand jury or to an attorney for the government pursuing another criminal matter in certain circumstances, or to certain national security officials if the information involves foreign intelligence, terrorism, or threat of attack. If petitioned by the government or a defendant in another judicial proceeding, the court can also permit release in the other proceeding. Absent such very limited circumstances, Barr would run afoul of this almost blanket prohibition, and could be sanctioned by contempt of court if he disclosed to Congress any grand jury information in the Mueller report under Fed. R. Crim. P. 6(e)(7).

Judiciary Committee Chairman Jerry Nadler, D-N.Y., and the Democrats surely know this, but seem not to care about the rule of law, the sanctity of the grand jury process, or the lack of any impeachment authorization in the House that could be considered a “judicial proceeding” to support their subpoena.

The Democrats are not seeking the grand jury information “to avoid a possible injustice in another judicial proceeding,” Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979). Nor are they seeking grand jury information to support articles of impeachment, as the House has not authorized such inquiry, unlike 1974 when grand jury information was produced to the Judiciary Committee related to its impeachment inquiry of President Richard M. Nixon. (Haldeman v. Sirica, 501 F.2d 714 — D.C. Cir. 1974). Likewise, the impeachment proceedings of federal district Judge Alcee Hastings provided the basis for the 11th Circuit to consider such congressional efforts a “judicial proceeding” and thus the House Judiciary Committee could subpoena grand jury documents related to Hastings’ indictment. (In re Request for Access to Grand Jury Materials Grand Jury 81-1, Miami, 833 F.2d 1438 — 11th Cir. 1987).

If Nadler wants to subpoena any grand jury information contained in the Mueller report, he first needs a majority of the House to authorize the Judiciary Committee to investigate impeachment of President Trump.

Somehow, it doesn’t seem as if Speaker Nancy Pelosi wants to open that can of worms, at least not yet.

Quin Hillyer is a senior commentary writer for the Washington Examiner. James Robertson is a lawyer in Mobile, Ala.


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