BERYL A. HOWELL, Chief District Judge.
I. BACKGROUND ... 137
A. The Special Counsel's Investigation... 138
B. Release of the Mueller Report...144
C. The Instant Proceeding...146
II. LEGAL STANDARD...147
III. DISCUSSION...148
A. Rule 6(e)'s "Judicial Proceeding" Requirement is Satisfied Because an Impeachment Trial is Such a Proceeding...149
B. HJC's Consideration of Articles of Impeachment is "Preliminarily To" an Impeachment Trial...163
C. HJC Has a "Particularized Need" for the Requested Materials...175
IV. CONCLUSION...182
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. CONST. 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 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.
What follows begins with a brief review of the initiation of the Special Counsel's
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 Order") (May 17, 2017) (capitalization altered).
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
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." Id. at I-1-2. For instance, a meeting occurred on June 9, 2016 at Trump Tower in New York City, between a Russian 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:
Id. 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.
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. Id. 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 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." Id. 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.
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
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." Id. 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 Bannon could account for the absent messages. Id.; see also id. at I-153-55 (extensive grand jury redactions).
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.
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 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.'" Id. at II-1 (citation omitted) (quoting OLC Op. at 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
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 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.
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
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." Id. 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., 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." Id. 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.
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 related to the Special Counsel's investigation. HJC App. HJC requests the release to it of three categories of material:
Id. 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.
Under Rule 6(e) of the Federal Rules of Criminal Procedure, disclosure of "a matter occurring before the grand jury" is generally prohibited. FED. R. CRIM. 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), 192 F.3d 995, 1002 (D.C. Cir. 1999) (per curiam), including grand jurors, interpreters, court reporters, operators of recording devices, persons who transcribe recorded testimony, attorneys for the government, and certain other persons to whom authorized disclosure is made, FED. R. CRIM. P. 6(e)(2)(B)(i)-(vii).
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 FED. R. CRIM. P. 6(e)(3)(A)-(E).
HJC is "not requesting the entire grand jury record" of the Special Counsel's investigation. HJC Reply at 24.
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. CONST. 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. 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., 441 U.S. 211, 222-23, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). The need for continued secrecy is reduced, given that the Special Counsel's grand jury investigation has ended, and is easily out-weighed by HJC's compelling need for the grand jury material referenced and cited in the Mueller Report to conduct a fulsome inquiry, based on all relevant facts, into potentially impeachable conduct by the President.
The three requirements for disclosure under Rule 6(e)(3)(E)(i) are addressed seriatim.
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.
In the Rule 6(e) context, "[t]he term judicial proceeding has been given a broad interpretation by the courts." In re Sealed Motion, 880 F.2d 1367, 1379 (D.C. Cir. 1989) (per curiam). The D.C. Circuit has indicated that "judicial proceeding" might "include[ ] every proceeding of a judicial nature before a competent court or before a tribunal or officer clothed with judicial or quasi judicial powers." Id. at 1380 (quoting Jones v. City of Greensboro, 51 N.C. App. 571, 277 S.E.2d 562, 571 (1981), overruled in part on other grounds by Fowler v. Valencourt, 334 N.C. 345, 435 S.E.2d 530 (1993)); see also In re North, 16 F.3d 1234, 1244 (D.C. Cir. 1994) (quoting In re Sealed Motion, 880 F.2d at 1380)); Haldeman v. Sirica, 501 F.2d 714, 717 (D.C. Cir. 1974) (en banc) (MacKinnon, J, concurring in part and dissenting in part) (describing Rule 6(e) judicial proceeding as one "in which due process of law will be available"); In re Grand Jury Investigation of Uranium Indus. (In re Uranium Grand Jury), No. 78-mc-0173, 1979 WL 1661, at *6 (D.D.C. Aug. 21, 1979) (Bryant, C.J.) (noting that the "judicial proceeding" exception authorizes disclosure of grand jury materials to a "wide variety of official bodies").
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, 255 F.2d 118, 120 (2d Cir. 1958); see also, e.g., In re J. Ray McDermott & Co., 622 F.2d 166, 170 (5th Cir. 1980). Similarly, courts have permitted disclosure in connection with internal police disciplinary proceedings under the "judicial proceeding" exception. See, e.g., In re Bullock, 103 F.Supp. 639, 641, 643 (D.D.C. 1952). The D.C. Circuit's decisions are in accord. The Circuit has held that the following proceedings are eligible for disclosure under Rule 6(e): (1) "disciplinary proceedings of lawyers" conducted by "bar committees," United States v. Bates, 627 F.2d 349, 351 (D.C. Cir. 1980) (per curiam), (2) grand jury investigations themselves, In re Grand Jury, 490 F.3d 978, 986 (D.C. Cir. 2007) (per curiam), and (3) proceedings pursuant to the now-expired Independent Counsel Act, 28 U.S.C. § 591 et seq. (1987), to determine what portions of an independent counsel report are appropriate for release, see, e.g., In re Sealed Motion, 880 F.2d at 1380. Additionally, the D.C. Circuit has even indicated that parole
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. CONST. art. III, § 1. Plainly, proceedings in state courts are "judicial proceedings" eligible for disclosure of grand jury information. See, e.g., United States v. Colonial Chevrolet Corp., 629 F.2d 943, 947 & n.9 (4th Cir. 1980) (noting that the court "may authorize disclosure under the circumstances detailed in Rule 6(e)(3); in fact it has done so in many cases in support of proceedings in both federal and state judicial, and even in state administrative, proceedings") (citing Doe, 255 F.2d 118; In re Disclosure of Testimony, Etc., 580 F.2d 281 (8th Cir. 1978) (authorizing disclosure of federal grand jury material to municipality investigating judicial misconduct); In re 1979 Grand Jury Proceedings, 479 F.Supp. 93 (E.D.N.Y. 1979) (authorizing disclosure of federal grand jury material regarding obstruction by municipal employees to municipality)); In re Petition for Disclosure of Evidence Before Oct., 1959 Grand Jury, 184 F.Supp. 38, 41 (E.D. Va. 1960) (citing Doe, 255 F.2d 118) ("We cannot agree with the United States that this phrase refers only to a Federal proceeding.").
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, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (citing Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546, 7 S.Ct. 242 (1828)). The United States Tax Court, for example, "is not a part of the Article III Judicial Branch," and "its judges do not exercise the `judicial Power of the United States' under Article III," Kuretski v. Comm'r of Internal Revenue, 755 F.3d 929, 940 (D.C. Cir. 2014). Nevertheless, the Tax Court "exercises a portion of the judicial power of the United States," Freytag, 501 U.S. at 891, 111 S.Ct. 2631, and that judicial power has, in turn, been deemed sufficient to make Tax Court proceedings "judicial proceedings" under Rule 6(e), see In re Grand Jury Subpoenas Duces Tecum, 904 F.2d 466, 468 (8th Cir. 1990) ("[T]he tax court redetermination hearing satisfies the judicial proceeding requirement."); Patton v. Comm'r of Internal Revenue, 799 F.2d 166, 172 (5th Cir. 1986) ("Clearly a tax court petition for redetermination is a `judicial proceeding' within the meaning of Rule 6(e)(3)([E])(i)."); United States v. Anderson, No. 05-cr-0066, 2008 WL 1744705, at *2 (D.D.C. Apr. 16, 2008) (ordering that grand jury materials be shared pursuant to Rule 6(e)(e)(E)(i) in connection with a "law suit ... pending before the United States Tax Court"); see also, e.g., In re Grand Jury Proceedings, 62 F.3d 1175, 1180 (9th Cir. 1995) (indicating that disclosure in connection with tax court litigation would be permissible under Rule 6(e) "upon an adequate showing" of need).
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.").
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.
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.
"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 HARV. L. REV. 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. 168, 183, 26 S.Ct. 377 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." Id. 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 THE FEDERALIST NO. 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 THE FEDERALIST NOS. 62-63 (probably James Madison), NO. 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." THE FEDERALIST NO. 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, 938 F.2d 239, 260 (D.C. Cir. 1991) (Randolph, J., concurring) ("The inference that the framers intended impeachment trials to be roughly akin to criminal trials is reinforced by seemingly
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." THE FEDERALIST NO. 66, supra, at 401; see also THE FEDERALIST NO. 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." THE FEDERALIST NO. 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, 938 F.2d at 261 (Randolph, J., concurring) ("From all of [Hamilton's] statements, it can be reasonably inferred that the framers intended that the Senate would approach its duty of trying impeachments with the solemnity and impartiality befitting judicial action....").
Hamilton and Madison's view is confirmed by the text of the Constitution. By making the Senate the "court of impeachments," id. at 306; THE FEDERALIST NO. 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 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. CONST. 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." Id. 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
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, BLACK'S LAW DICTIONARY (11th ed. 2019) [hereinafter BLACK'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, BLACK'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, BLACK'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, 574 U.S. 528, 135 S.Ct. 1074, 1085, 191 L.Ed.2d 64 (2015) (plurality) (explaining that noscitur a sociis means that "a word is known by the company it keeps"). "Case" means, as relevant here, "[a] civil or criminal proceeding, action, suit, or controversy at law or in equity" or "[a]n instance, occurrence, or situation" —again, noscitur a sociis pushes strongly in favor of relying on the first definition here. Finally, "crime" means "[a]n act that the law makes punishable; the breach of a legal duty treated as the subject-matter of a criminal proceeding," Crime, BLACK'S, and "misdemeanor" means "[a] crime that is less serious than a felony and is usu. punishable by fine, penalty, forfeiture, or confinement (usu. for a brief term) in a place other than prison (such as a county jail)." Misdemeanor, BLACK'S.
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 U.S. (2 Dall.) 408, 1 S.Ct. 436 (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, 243 U.S. 521, 37 S.Ct. 448, 61 S.Ct. 881 (1917), the Court noted that congressional contempt power can be "transformed into judicial authority" when a "committee contemplat[es] impeachment." Id. at 547, 37 S.Ct. 448.
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
This further supports the conclusion that an impeachment trial constitutes "a judicial proceeding" under Rule 6(e)(3)(E)(i).
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
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." Id. Accordingly, the Attorney General 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." Id.
In 1946, Rule 6(e) was enacted to codify current practice and not "to create new law." In re 1972 Grand Jury Report, 370 F. Supp. at 1229. As the Advisory Committee Notes explain, Rule 6(e) "continues the traditional practice of secrecy on the part of members of the grand jury, except when the court permits a disclosure." FED. R. CRIM. P. 6(e) advisory committee's note 1 (1944 adoption) (emphasis added); see also, e.g., Sells Eng'g, Inc., 463 U.S. at 425, 103 S.Ct. 3133 (noting that
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 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, 279 U.S. 597, 613, 49 S.Ct. 452, 73 S.Ct. 867 (1929) (citing U.S. CONST. art. I, § 5, cl. 1).
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, 880 F.2d at 1380 n.16 (quoting approvingly a District of Kansas decision noting that Haldeman decided "disclosure of grand jury material to [a] House Committee considering impeachment" was made preliminarily to or in connection with a judicial proceeding (quoting United States v. Tager, 506 F.Supp. 707, 719 (D. Kan. 1979)).
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 engaged in an impeachment-related investigation of President Richard Nixon. See In re 1972 Grand Jury Report, 370 F.Supp. 1219. In ordering that disclosure, Chief Judge Sirica confronted the same issue currently pending in this case: Is an impeachment trial a "judicial proceeding" within the meaning
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." Id. 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 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 FED. R. CRIM. 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. 920 F.3d at 850. The McKeever dissent, though, argued that the majority's decision conflicted with Haldeman. On the dissent's reading, Chief Judge Sirica's decision had been an exercise of inherent authority, and Haldeman, in turn, "affirmed [Chief Judge Sirica's] understanding that a district court retains discretion to release grand jury materials outside the Rule 6(e) exceptions." Id. at 855 (Srinivasan, J., dissenting).
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, 826 F.2d 43, 54 (D.C. Cir. 1987) (Ginsburg, Ruth B., J., concurring) (explaining that D.C. Circuit law is binding "unless and until overturned by the court en banc or by Higher Authority"), vacated in part on reh'g on other grounds, 857 F.2d 1516 (D.C. Cir. 1988) (en banc). These decisions alone require ruling in HJC's favor on the threshold requirement that an impeachment trial is a "judicial proceeding" within the meaning of Rule 6(e). Indeed, in addition to Chief Judge Sirica and the Haldeman Court, every other court to have considered releasing grand jury material to Congress in connection with an impeachment investigation has authorized such disclosure. See Order, In Re: Grand Jury Investigation of U.S. Dist. Judge G. Thomas Porteous, Jr., No. 2:09-mc-04346-CVSG (E.D. La. Aug. 6, 2009), summarily aff'd sub nom. In Re Grand Jury Proceeding, No. 09-30737 (5th Cir. Nov. 12, 2009); In re Grand Jury Proceedings of Grand Jury No. 81-1 (Miami), 669 F.Supp. 1072 (S.D. Fla. 1987), aff'd sub nom. In re Request for Access to Grand Jury Materials (Hastings), 833 F.2d 1438 (11th Cir. 1987).
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, 346 U.S. 379, 383, 74 S.Ct. 145, 98 S.Ct. 106 (1952); then quoting McKeever, 920 F.3d at 855 (Srinivasan, J., dissenting)); see Hr'g Tr. at 87:24-88:1 ("That page-and-a-half decision talked about the
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, 530 U.S. 466, 488 n.14, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (quoting id. at 536, 120 S.Ct. 2348 (O'Connor, J., dissenting)). Haldeman after all, was an en banc decision. If Haldeman had been decided on inherent authority grounds, the McKeever panel would have had no choice but to apply that precedent faithfully. The McKeever panel recognized as much; indeed, this argument was the sole subject of the dissent. See 920 F.3d at 847 n.3 ("[O]ur dissenting colleague cite[s] Haldeman ... as stepping outside the strict bounds of Rule 6(e)."); id. at 853-55 (Srinivasan, J., dissenting). Thus, when the McKeever majority "read Haldeman as did Judge MacKinnon in his separate opinion concurring in part, as fitting within the Rule 6 exception for `judicial proceedings," id. at 847 n.3 (majority opinion), the majority made that interpretation the binding law in this Circuit.
As the foregoing analysis shows, a Senate impeachment trial is a "judicial proceeding" within the meaning of Rule 6(e). Quod erat demonstrandum.
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, 463 U.S. at 480, 103 S.Ct. 3164. Thus, "[i]f the primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure under ([E])(i) is not permitted." Id. For HJC's current impeachment-related proceedings to qualify as "preliminarily to ... a judicial proceeding" and disclosure to be permissible, HJC
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." Id. at 481, 103 S.Ct. 3164. By contrast, the Court discussed a second situation where "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, 103 S.Ct. 3164. 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." Id. (citing In re Grand Jury Proceedings (Miller Brewing Co.), 687 F.2d 1079 (7th Cir. 1982)).
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, 103 S.Ct. 3164 n.6. In so doing, the Court acknowledged, in practical terms, how investigations evolve to reach the point of contemplating litigation, stating:
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, 103 S.Ct. 3164.
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 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, 370 F. Supp. at 1230 (stating that House "acts simply as [a] grand jury."); 3 Hinds Ch. 72 § 2343 ("The analogy between the function of the House in this matter [referring to 1804 impeachment of Justice Samuel Chase] and that of a grand jury was correct and forcible."); id. Ch. 54 § 1729 (explaining in the context of an 1818 "inquiry into the conduct of clerks in the Executive Departments" "that the House was in the relation of a grand jury, to the nation, and that it was the duty of the House to examine into the conduct of public officers"); id. Ch. 79 § 2505 (explaining in 1873 during the impeachment of Judge Delahay that "[t]he Senate is a perpetual court of impeachment, and in presenting these articles we act only as a grand jury"); Mazars, 2019 WL 5089748, at *32 (Rao, J., dissenting) ("In the context of an impeachment inquiry, the House serves as a kind of grand jury, investigating public officials for misconduct."); cf. Jefferson's Manual of Parliamentary Procedure § 615a ("Jefferson's Manual") ("[The English House of Commons] have been generally and more justly considered, as is before stated, as the grand jury.").
Accordingly, just as a grand jury investigation is "preliminary to a possible criminal trial," In re Grand Jury, 490 F.3d at 986, a House impeachment inquiry occurs preliminarily to a possible Senate impeachment trial.
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.
Despite the clarity with which the Supreme Court "decline[d]," Baggot, 463 U.S. at 482 n.6, 103 S.Ct. 3164, to draw the line when an investigation becomes "preliminarily to ... a judicial proceeding," DOJ relies heavily on Baggot to contend that HJC's inquiry fails to cross that line. See DOJ Resp. at 24-25. In this vein, DOJ construes Baggot as requiring HJC to show that its investigation "must lead to referral of articles of impeachment to the floor of the House," id. at 25, and further that "referral of articles of impeachment `must' lead to a Senate trial," id. Short of those dual showings of action in the House and in the Senate, DOJ posits that HJC's investigation amounts only to "[a] nonlitigative function," Id. at 27 (quoting Baggot, 463 U.S. at 483, 103 S.Ct. 3164), with only a "tenuous" connection to an impeachment trial, id. at 25, which is "entirely hypothetical rather than `likely to emerge,'" Id. at 29 (quoting Baggot, 463 U.S. at 480, 103 S.Ct. 3164)).
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." Baggot, 463 U.S. at 482 n.6, 103 S.Ct. 3164. Nor is DOJ's requirement of a guarantee of a Senate impeachment trial grounded in Baggot. Baggot made clear that the requisite judicial proceeding need not be subject to initiation by the party seeking disclosure or pending at the time of the requested grand jury disclosure; the proceeding need only be "anticipated," Id. at 480, 103 S.Ct. 3164, or "possible," In re Grand Jury, 490 F.3d at 986; see Baggot, 463 U.S. at 482-83, 103 S.Ct. 3164 ("We also do not hold that ... a private party who anticipates a suit ... may never obtain ([E])(i) disclosure of grand jury materials any time the initiative for litigating lies elsewhere. Nor do we hold that such a party must always await the actual commencement of litigation before obtaining disclosure."). Thus, DOJ's proposed criteria to demonstrate a "primary purpose" for an impeachment inquiry are rejected.
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 impeachment is one of many possible outcomes." DOJ Resp. at 24.
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.
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").
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, 2019 WL 5089748, at *18.
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.
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
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 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." Id. 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 FED. R. CRIM. 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 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
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." Id. 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 articles of impeachment against President Trump. Cf. Mazars, 2019 WL 5089748, at *10-11 (looking to statements a committee chairman made in a memorandum to his colleagues to assess the purpose of a congressional investigation); see Jefferson's Manual § 603 at 319 (stating that "[i]n the House various events have been credited with setting an impeachment in motion," such as "charges made on the floor on the responsibility of a Member or Delegate," "a resolution introduced by a Member and referred to a committee," "charges transmitted... from a grand jury," and "facts developed and reported by an investigating committee of the House"); 3 Deschler Ch. 14 § 5 ("In the majority of cases, impeachment proceedings in the House have been initiated either by introducing resolutions of impeachment by placing them in the hopper, or by offering charges on the floor of the House under a question of constitutional privilege. Where such resolutions have directly impeached federal civil officers, they have been conferred by the Speaker to the Committee on the Judiciary, which has jurisdiction over federal judges and presidential succession...."); Charles W. Johnson et al., House Practice: A Guide to the Rules, Precedents, and Practice of the House, Ch. 27 § 6, at 602 (2017) (confirming same).
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.
DOJ urges this Court to second-guess a co-equal branch of government
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, 801 F.2d 445, 449 (D.C. Cir. 1986) (Scalia, J.) (noting that "no absolute prohibition of judicial review" of House Rules exists).
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, 571 U.S. 320, 328, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014) (noting that to issue an indictment, a grand jury must find probable cause to believe a defendant committed the charged offense); Dep't of Justice, Justice Manual § 9-27.220 (explaining that before commencing or recommending federal prosecution against an individual, a federal prosecutor must "believe[] that the person's conduct
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 access to the pertinent information before making an impeachment recommendation to the full House.
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, 95 S.Ct. 1813, 44 L.Ed.2d 324 (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 forgo its other aims. See Mazars, 2019 WL 5089748, at *18. HJC's investigation to determine whether to impeach President Nixon, for example, contributed not only to President Nixon's resignation, but also to significant legislative reforms. See, e.g., Tax Analysts v. IRS, 117 F.3d 607, 611 (D.C. Cir. 1997) (Internal Revenue Code provision restricting public release of individual tax returns); United States v. Rose, 28 F.3d 181, 183 (D.C. Cir. 1994) (Ethics in Government Act of 1978).
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
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.
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 480, 103 S.Ct. 3164; In re Sealed Case, 801 F.2d 1379, 1381 (D.C. Cir. 1986). As stated earlier, those materials fall into three categories. First, HCJ asks for "all portions of the Mueller Report that were redacted pursuant to Rule 6(e)." HJC App. at 25. Second, HJC wants the material underlying those redactions—that is, the portions of the grand jury "transcripts or exhibits" cited in the Report. Id. Third, HJC requests "transcripts of any underlying grand jury testimony and any grand jury exhibits that relate directly to" President Trump's knowledge of several topics as well as to actions taken by former White House counsel Donald F. McGahn II during his service to first-candidate and then-President Trump. Id.
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, 801 F.2d at 1381 (internal quotation marks omitted); see also Baggot, 463 U.S. at 480 n.4, 103 S.Ct. 3164 (citing Douglas Oil, 441 U.S. at 222, 99 S.Ct. 1667). The balancing aspect of the test means that "as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury [material] will have a lesser burden." Douglas Oil, 441 U.S. at 223, 99 S.Ct. 1667.
Ultimately, determinations of "particularized need" are committed to the "considered discretion of the district court." Douglas Oil, 441 U.S. at 228, 99 S.Ct. 1667; see also In re Sealed Case, 801 F.2d at 1381 (recognizing the "substantial discretion
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.
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, 833 F.2d at 1442; Order, In Re: Grand Jury Investigation of U.S. Dist. Judge G. Thomas Porteous, Jr., No. 2:09-mc-04346-CVSG, at 3; In re 1972 Grand Jury Report, 370 F. Supp. at 1230 (applying the predecessor to the "particularized need" standard). Chief Judge Sirica, in releasing the Watergate Roadmap to HJC, remarked that "[i]t would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information." In re 1972 Grand Jury Report, 370 F. Supp. at 1230.
Impeachment based on anything less than all relevant evidence would compromise the public's faith in the process. See Hastings, 833 F.2d at 1445 ("Public confidence in a procedure as political and public as impeachment is an important consideration justifying disclosure."). Further, as already discussed, denying HJC evidence relevant to an impeachment inquiry could pose constitutional problems. See supra Parts III.B.3; see also Hastings, 833 F.2d at 1445 (concluding that denying the House the full record available, including the grand jury material, for use in impeachment would "clearly violate separation of powers principles"). These principles may, on their own, justify disclosure. See Hastings, 833 F.2d at 1442; Order, In Re: Grand Jury Investigation of U.S. Dist. Judge G. Thomas Porteous, Jr., No. 2:09-mc-04346-CVSG, at 3; In re 1972 Grand
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. 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.
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").
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
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, 800 F.2d 1293, 1302 (4th Cir. 1986) (explaining that "particularized need' standard requires more than relatedness but that "[o]bviously, the materials must be `rationally related' for otherwise there would be no reason at all to disclose").
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, 932 F.2d 481, 488 (6th Cir. 1991)). In particular, DOJ cites an agreement reached with HJC this summer for DOJ to provide to HJC the thirty-three FBI-302 reports cited in Volume II of the Report, contending that this agreement must preclude a finding of "particularized need." See DOJ Resp. at 32. These arguments
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 Second Supp. at 4, ECF No. 41.
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.
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, 441 U.S. at 223, 99 S.Ct. 1667. Once a grand jury has ended, interests in preventing flight by those who might be indicted and in protecting sitting jurors and witnesses disappear, or lessen considerably. See id. at 222, 99 S.Ct. 1667 (recognizing that "the interests in grand jury secrecy" are "reduced" once "the grand jury has ended its activities"); Butterworth v. Smith, 494 U.S. 624, 632-33, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990) (identifying these as the considerations that no longer apply "[w]hen an investigation ends"); In re 1972 Grand Jury Report, 370 F. Supp. at 1229; 1 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 106 (4th ed. 2019).
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, 441 U.S. at 222, 99 S.Ct. 1667. Any risk of damage to this interest is slim here, for two reasons. First, as DOJ itself emphasizes in arguing that HJC cannot establish
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, 441 U.S. at 219, 99 S.Ct. 1667; see also Wright & Miller, supra, § 106. The risk of public reputational harm to such individuals is slim to none here, however, where disclosure is to HJC under special handling protocols. Further, any remaining interest in secrecy is diminished by widespread public knowledge about the details of the Special Counsel's investigation, which paralleled that of the grand jury's, and about the charging and declination decisions outlined in the Mueller Report. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006) (recognizing that "when information is sufficiently widely known" it has no "character [of] Rule 6(e) material" (quoting In re North, 16 F.3d at 1245)).
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 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
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, 370 F. Supp. at 1230; see Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 567 n.15, 103 S.Ct. 1356, 75 L.Ed.2d 281 (1983) ("[T]he district court may weigh the public interest, if any, served by disclosure to a governmental body.").
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, 441 U.S. at 222, 99 S.Ct. 1667.
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 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.
