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Barr made it perfectly clear in his testimony today that he is obdurate and will remain obdurate about handing over the grand jury materials that House Judiciary Committee chairman Jerry Nadler has requested. 1/62
Nadler has authorization from the committee to subpoena Barr for the materials, but he is waiting to see the redacted version of the MUELLER REPORT that Barr is preparing before he actually sends the subpoena. But clearly, Nadler is expecting the worst. 2/62
Since Barr made his intentions perfectly clear today, it seems to me that what is needed now is some strategizing that isn’t purely legal. 3/62
What Democrats in Congress need to do is make sure that they do get access to the grand jury materials (and to do so without having first opened formal impeachment hearings) and to act in such a way that Barr (who is way off base on this issue) is embarrassed. 4/62
The best option strategically is to just ignore Barr and bypass him by going directly to Chief Judge Beryl Howell of the D.C. Circuit and request that she release the materials to Congress. 5/62
It is going to be Howell’s call in any case, whether Barr makes the request alone (which he is clearly not doing to do), 6/62
or Barr joins with the House Judiciary Committee in making the request (which he’s not going to do), or the House Judiciary Committee makes the request alone. 7/62
There is all the more reason for the House Judiciary Committee to go it alone on the matter because the D.C. Circuit Court of Appeals decision in McKeever v. Barr (decided on April 5) virtually assures that Howell will grant the request. 8/62 tinyurl.com/y4o3zywv
The Circuit court’s decision has been widely held to make it MORE difficult for Howell to release the materials to Congress, but that is not the case. 9/62
The Circuit Court of Appeals held only that the district court did not have DISCRETIONARY authority under Federal Rules of Criminal Procedure 6-E to release grand jury materials. 10/62
But this only meant that if the district court did release grand jury materials, it would have to justify that release within the confines of the secrecy rules in 6-E., 11/62
and all three members of the panel affirmed the district court’s authority to release grand jury materials in response to a request that is “preliminary to or in connection with a judicial proceeding.” 12/62
So the question then becomes: Could Judge Howell release Mueller’s grand jury materials to the House Judiciary Committee on the grounds that the committee needs the materials as a preliminary to a judicial proceeding? 13/62
Yes, she certainly could, because her court (the D.C. District Court) has repeatedly and strongly affirmed that Congressional impeachment proceedings are judicial proceedings. 14/62
It did so in the Watergate matter (Judge Sirica *In re report & recommendation of June 5, 1972 grand jury concerning transmission of evidence to House of Representatives)*, and the DC Circuit Court of Appeals affirmed 15/62 tinyurl.com/y5gu4w2o
Sirica’s opinion in Haldeman v. Sirica (a 1974 decision), at least so far as the matter of “judicial proceedings” and its bearing on whether impeachment proceedings in Congress are “judicial proceedings” is concerned. 16/62 tinyurl.com/y2rd9n52
The Circuit Court’s opinion on April 5 in McKeever v. Barr left those previous decisions of the D.C. District Court standing in full force: 17/62 tinyurl.com/y4o3zywv
18/62
19/62
20/62
(The Circuit court did not mention it, but Judge MacKinnon argued in his concurring opinion against the court’s releasing the grand jury report, and recommended instead the full release to Congress of the grand jury materials!) 21/62
Bottom line, then, Judge Howell of the D.C. District court would be in the following position if presented by a request by the House Judiciary Committee for the release of the grand jury materials. 22/62
The controlling precedent of the D.C. District Court concerning the “judicial proceedings” exception to Rule 6-E, as well as that opinion’s holding that Congressional impeachment hearings are “judicial proceedings” 23/62
have been left standing in full force by the Appeals Court decision in McKeever. 24/62
And perhaps most notably, the Circuit court noticed the opinion in Haldeman that “grand jury matters may lawfully be made available to the House of Representatives as a ‘body that in this setting acts simply as another grand jury.’” 25/62
Although the Circuit court did not AFFIRM this part of the opinion in Haldeman, it did take notice of it without rejecting it (even as obiter dicta).

That, too, means, so far as Howell is concerned, that this view of the House as a grand jury also remains in full force 26/62
and as a PRECEDENT for Howell for her own court. That is, it is not a position that she *could* consider in deciding whether to release the Mueller grand jury materials to Congress: it is one that she *must* consider in such a decision. 27/62
What I am recommending, then, is that the House Judiciary Committee send a request to the DC District Court now (without waiting for Barr). Howell would almost certainly grant the request, 28/62
because there is nothing in either of the two on-point Circuit court decisions (Haldeman and McKeever) against it, and the controlling precedent of her own district court favors it. 29/62
An order by Howell to release the Mueller grand jury materials to Congress might or might not be appealed by Attorney General Barr, but if he did appeal it, the appeal would present the Circuit court with a real predicament, 30/62
particularly if Howell mentioned in her order that she had ordered the release in part because of the Circuit court’s opinion in Haldeman 31/62
that “grand jury matters may lawfully be made available to the House of Representatives as a ‘body that in this setting acts simply as another grand jury.’” 32/62
In order for the Circuit court to overturn her order, it would have to rule either that Congressional impeachment proceedings are not judicial proceedings, 33/62
or that a request from the House Judiciary Committee cannot be honored unless the House has opened *formal* impeachment proceedings. 34/62
But it is hard to see how the Circuit court could justify either ruling, even if it wanted to do so. After all, it is a commonplace in constitutional law that impeachment is a TRIAL (for high crimes and misdemeanors). 35/62
The procedure is as follows. (For the details, see Chapter 27 of this document:) 36/62 tinyurl.com/y5zue4ll
The House considers impeachment, and if it votes to impeach (by majority vote) the impeachment measure is sent to the Senate. 37/62
The president (or any other government official who has been impeached by the House) is then removed from office if the impeachment measure gets a ⅔ majority vote in the Senate. 38/62
As legal scholars have long observed, under the Constitution the Senate serves as both a judge and jury for impeachment proceedings. That being the case, the House must be said to serve both as the prosecutor and the grand jury in impeachment proceedings. 39/62
(In the event that an impeachment measure is passed by the House, the House sends a team of its own members, known as managers, to play the role of prosecutors in the trial that is conducted by the Senate.) 40/62
None of the foregoing points is under dispute. They are, in fact, common understandings of the matter by historians and specialists in constitutional law. 41/62
They are also very salient in the present context, because the D.C. Circuit court could not overturn the release of grand jury materials by the D.C. District Court without overturning these common understandings. 42/62
Let it be noted as well that Rule 6-E is a rule of federal criminal procedure that is ITSELF a creation of the Congress. (As many commentators have pointed out, Congress could certainly get the Mueller grand jury materials if it had to simply by amending the rule!) 43/62
And as I noted in a previous posting, Rule 6-E is subordinate to any STATUTE that might be controlling. 28 U.S. Code § 592 is just such a statute, and it says: 44/62 tinyurl.com/yy7ox9qe
Finally, consider the possibility that the Circuit court might strike down the District court’s release of the Mueller grand jury materials on the grounds that the House cannot be considered 45/62
to be a body that serves as a prosecutor and grand jury within the meaning of Rule 6-E until it has actually opened formal impeachment hearings. 46/62
If this possibility were thought to be sufficiently worrying, all the House would have to do in order to forestall it would be to pass a resolution (expressing the sense of the House) that, as the body 47/62
that is empowered by the Constitution to serve as a joint prosecutor and jury in IMPEACHMENT proceedings, it needs the Mueller grand jury materials in order to decide WHETHER IT SHOULD OPEN formal impeachment proceedings--i.e., as a preliminary to making such a decision. 48/62
Note that this is a matter well beyond the jurisdiction of the courts (as in fact is the whole matter of grand jury secrecy; all the courts can do is rule on how the rules passed by Congress and signed into law are to be INTERPRETED). 49/62
And it is relevant that when the House is in impeachment mode, the House Judiciary COMMITTEE serves in effect as the House’s own prosecutor and grand jury. 50/62
(If, after its own deliberations and investigations have been completed, the House Judiciary Committee reports a recommendation of impeachment, the whole House serves in effect as a trial court for the committee’s recommendation.) 51/62
The typical federal grand jury is under the supervisory authority of the federal courts, and there are rules (established by the Supreme Court with the approval of Congress) specifying what is deemed to be appropriate, lawful, and necessary for the conduct of these juries. 52/62
But the courts have no jurisdiction over the House of Representatives; consequently, they have no authority to decide what is necessary or appropriate for the House in its own proceedings.

That is for the HOUSE alone to decide. 53/62
Hence the House doesn’t have to open formal impeachment hearings in order to get the Mueller grand jury materials released by the courts. All it would have to do (at most) is pass a resolution that it deems the materials necessary for its own internal purposes.

BASTA! 54/62
For all the foregoing reasons, I believe that Nadler and the House can and will prevail at the District court level if it requests the grand jury materials, and also that, if that release were challenged, the House would prevail at the Appeals court level as well. 55/62
And that would be a good thing, for three reasons. 56/62
First, it would give the House Judiciary Committee the materials that it needs. 57/62
Second, the committee would obtain materials that it undoubtedly has the right to have under the Constitution, and it is important to defend fundamental constitutional principles. 58/62
(The ability of Congress to conduct investigations has been significantly threatened, because on the alternative the House would have to open formal impeachment hearings before it even had enough evidence to know whether it should do so.) 59/62
The third reason why this would be a good thing is that a successful direct address to the court (which will probably be inevitable anyway) would greatly embarrass Barr--because it would show that the District court did have the power to release the materials under 6-E. 60/62
And that would show that Barr is wrong to think that 6-E prevents him from making the request himself.

And we wouldn’t want to embarrass General Barr, would we, now? 61/62
PS/ The best exchange that I have seen from the hearing today was the questioning of Barr by Rep. Ed Case (D-HI). Here’s a PBS clip of the exchange. Barr is made very uncomfortable by Case’s questioning. 62/62
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