Thread by @msbellows

Thread: This is a big deal, and one I've seen coming for a long time. (I'm surprised the judge was surprised.) Here's a nutshell of what's going on:
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https://twitter.com/hsu_spencer/status/1181602530826035200

Federal Rule of Criminal Procedure 6 sets forth how grand juries operate. 6(e) says "grand jury materials" ("GJM") are strictly confidential except in a very few circumstances. We'll get to what those are in a sec, but first: what ARE GJM?
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GJM are the meat behind a grand jury's decision (whether to indict someone or not). Grand juries subpoena documents, question witnesses, etc.; all that evidence = "grand jury materials" -- and it's all confidential unless a specific exception applies.
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Put differently: what a grand jury says or reports or decides is just hearsay. When a prosecutor wants to actually TRY a criminal in court, they don't just quote what the grand jury thought about it; they have to produce actual firsthand evidence. GJM = hard evidence.

Mueller's report was based largely on work done by a special grand jury. He didn't call witnesses or subpoena documents; the GRAND JURY did. His report is secondhand; he summarized what documents or witnesses said, but those docs + transcripts aren't attached to his report...
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... BECAUSE they're Grand Jury Material.

If the House impeaches Trump based on Trump/Russia, it needs to itself a case to the Senate (+ to the American people). It can't just read Mueller's report; it needs the EVIDENCE.

The GJM.

Which is confidential.
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So Congress has asked to see the GJM underlying the Mueller report, and DOJ (hoping to cripple any impeachment trial) is saying no, you can't, it's confidential.

So: Rule 6(e) says GJM MAY be shared in another "judicial proceeding." Is impeachment a judicial proceeding?
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At first glance, no. There's a JUDICIAL BRANCH. The judicial branch oversees grand juries AND all federal civil and criminal trials.

Congress is the legislative branch, not the judicial branch. And impeachment doesn't put anyone in jail; it simply removes them from office.
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All of which suggests that Congress can't see GJM. (Also note that Congress approves the FRCrimP; it could have written in an express exception for Congressional oversight, but hasn't.)
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BUT: the law evolved differently, because of Watergate.

When the Watergate burglars were caught, a federal grand jury was convened, supervised by a district (trial) court judge named John Sirica. As that grand jury dug into the facts, they realized Nixon was implicated.
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By the time the grand jury was done, the House Judiciary Committee had begun an impeachment inquiry. The grand jury wanted to show HJC some of the evidence it had gathered, so it prepared a briefcase of evidence + a "roadmap" of what it meant, + asked the judge to deliver it.
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And even though the "roadmap" and briefcase were Grand Jury Material, Sirica gave them to Congress. He wrote a decision explaining that impeachment was a kind of judicial proceeding, and so Congress could receive GJM in the impeachment context.
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Honestly, I'm not sure he was right. But it was Watergate, and Nixon was guilty as fuck, so.

Now, Sirica's decision was elaborate and well-reasoned – but trial court decisions ≠ binding precedent. But the DC Circuit upheld him in a short, vague opinion saying, eh, whatever.
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So ever since then, Sirica's ruling has been considered good law, even though the appellate decision that is the ACTUAL law is vague.

And then earlier this year, the DC circuit was asked to release grand jury material in a different case to a historian, and said no. ...
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And although that case isn't directly relevant to the impeachment/judicial exception, the court did touch on the Sirica precedent in a footnote, grudgingly affirming it but also making clear that the current Court of Appeals thinks that precedent is weak tea.
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So Trump's lawyers aren't crazy for arguing that the Watergate-era decisions (by Sirica and then the DC Circuit upholding him) were wrongly decided. if they succeed, they can keep Congress from obtaining the actual evidence underlying Mueller's report.
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To impeach Trump on Russia – AND MAYBE EVEN FOR OBSTRUCTION!!! –Congress would have to start from scratch, interviewing witnesses, taking testimony, subpoenaing documents, etc., bec. most of the evidence Mueller obtained would be under seal, even to Congress.

Oof!
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A couple followups:
a) You know how the whole GOP screamed "hearsay! hearsay!" about the whistleblower complaint? I suspect that was an intentional talking point, a trial run for the "hearsay!" objection they'll make when Dems, barred from seeing GJM, cite the Mueller report.
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(b) the Whitewater special counsel, Ken Starr, operated under a statute specifically allowing him to send grand jury evidence to Congress for impeachment purposes. That statute trumped 6(e), which is why Starr literally was able to send truckloads of boxes to Congress...
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But after the Clinton impeachment was over, Democrats, wanting to rein in abusive prosecutions like Starr's, let the statute lapse and instead wrote DOJ administrative rules governing special counsel. BUT admin rules don't trump statutes, so 6(e) once again makes GJM secret.
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Also, the new special counsel administrative rules ended up OMITTING a clause that was in the Whitewater-era statute, expressly allowing a special counsel to make impeachment referrals to Congress. (Again, the idea was to rein in abuses like Starr's.)
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(We Democrats are really good at changing the rules following Republican abuse, just in time for the new rules to be used against us. That's a big reason why I oppose making presidents subject to prosecution while in office: it'll be used against us, not them.)
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It's interesting to note who wrote the well-intentioned new rules that turned out to hobble Mueller + might wind up depriving Congress of the evidence it needs to impeach Trump even for obstructing the Russia investigation: a good guy, @neal_katyal, ran the advisory group...
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... and a little-known judge named John Roberts sat on the advisory group.

So when appeals of today's ruling reach the Supreme Court, the lawyers will be arguing to a chief justice who has inside knowledge of the internal deliberations behind the special counsel rules.
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So: are we fucked?

I don't know. We might be fucked.

One thing I can say for sure is that when Dems take over, they absolutely MUST give Congress more power instead of delegating it to special prosecutors, and they MUST rewrite 6(e) as part of that reassertion of Art. I.
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Good point. But:
1. Even if Dems decide to leave Trump/Russia SUBSTANCE alone, Trump's obstruction of Mueller still should be included in the articles of impeachment – but may be impossible to prove without GJM.
...

https://twitter.com/qphotonyc/status/1181656883234578432

2. I'd LIKE to see Trump impeached for campaign collusion with Russia, bec it (unlike emoluments or Ukraine) shows him to be an illegitimate president ab initio – giving the next prez moral authority to unwind Trump's actions aggressively, possibly even including court-packing.