Philip Allen Lacovara was a counsel to the Watergate special prosecutor. Laurence H. Tribe is a constitutional law professor at Harvard Law School.
The uncertain prospect that the House Judiciary Committee will receive the raw, unredacted report generated by special counsel Robert S. Mueller III got even less certain Friday. A decision by the federal court of appeals in Washington now confronts the House leadership and Attorney General William P. Barr with some difficult political choices.
In a 2-to-1 decision in McKeever v. Barr, the court reaffirmed the principle of grand jury secrecy and concluded that a court has no “inherent power” to release grand jury information. This decision will give Barr a plausible basis to resist the Judiciary Committee’s subpoena of the entire Mueller report, even if the committee goes to court to enforce it. But both the House and the attorney general have ways to cope with this obstacle, if they have the political will and the professional judgment to do so.
In McKeever, two Republican appointees, including President Trump’s former deputy White House counsel, concluded that grand jury information must remain confidential unless a request for disclosure falls within one of the narrow exceptions listed in the federal rules of criminal procedure. The court refused to allow the disclosure of grand jury proceedings relating to the 1957 indictment of an FBI agent suspected of conspiring with the regime of Dominican Republic dictator Rafael Trujillo to kidnap and murder an outspoken critic. Even though all the witnesses and principals died long ago, the court concluded that a historian writing a book about the incident could not get access to the grand jury proceedings.
In the face of Barr’s decision not to disclose any of the Mueller report to the public or even to the House Judiciary Committee chaired by Rep. Jerrold Nadler (D- N.Y.) until Barr and his team have scrubbed the report of grand jury information (and other material), Nadler and committee Democrats have authorized a subpoena for the full report, setting the stage for a court fight over the committee’s right to see grand jury information. Although the public need underlying the request for disclosure in McKeever was much less pressing, the decision in that case undermines the position of Nadler’s committee, because the controlling federal rule contains no exception allowing congressional “oversight” committees to demand access to otherwise secret grand jury proceedings.
One of us (Tribe) has supported investigation but resisted the call for impeachment hearings as such, defending House Speaker Nancy Pelosi (D-Calif.) in that regard, while the other (Lacovara) recently argued that Pelosi was duty-bound under the Constitution to have the House Judiciary Committee open a formal investigation into whether grounds for impeachment exist. One reason for doing so was to enhance the likelihood that the committee could see the evidence that Mueller developed through the use of his investigating grand jury. During the Watergate investigation, the special prosecutor working with a grand jury developed a report detailing the evidence tending to show that President Richard M. Nixon had committed various federal crimes, including obstruction of justice, that might constitute grounds for impeachment.
One of the exceptions to grand jury secrecy is disclosure “preliminary to or in connection with a judicial proceeding.” To authorize disclosure of the Watergate grand jury information, the special prosecutor’s office argued that the House had authorized its Judiciary Committee to conduct a formal impeachment inquiry and that such an inquiry could be fairly analogized to a “grand jury” investigation and thus a judicial proceeding. Both the district court and the court of appeals agreed, and the Judiciary Committee obtained both the report and the underlying evidence.
Significantly, the appeals court decision several days ago reaffirmed that exception. All three judges agreed that an impeachment inquiry falls within the “exception for judicial proceedings” and “coheres” with other rulings about the proper scope of grand jury secrecy.
But Pelosi has declined to allow the Judiciary Committee to open even a preliminary impeachment inquiry, asserting rather bizarrely that Trump is “not worth it.” That decision may hamstring Nadler’s quest for the complete Mueller report. Nothing in the federal rules creates an explicit exception allowing congressional committees exercising general powers of government “oversight” to demand access to secret grand jury material. So, Pelosi and Nadler are confronting a dilemma of their own making: either revisit the politically fraught impeachment question or concede that the House is at the mercy of whatever judgment the attorney general makes in excising grand jury information, which may include the most salient material about possible collusion and obstruction of justice.
For his part, Barr also has delicate judgments to make. If he is so inclined, the attorney general could properly opt to exclude only the names and actual testimony of grand jury witnesses while nevertheless informing the Judiciary Committee — and the public — about the substance of the information developed during the proceedings. Unfortunately, Barr has given every indication that he intends to make needlessly sweeping redactions, especially having ruled that, in his judgment, the evidence of obstruction of justice did not rise to the level of a prosecutable crime. Trump’s selection of his new attorney general may prove to be his best line of defense — unless Pelosi revisits her stance and directs the House Judiciary Committee to include impeachment within its investigatory ambit.