A Negotiated Resolution for the Second Article of Impeachment

Professor Jonathan Turley has been extremely critical of the second article of impeachment against President Trump. Turley claims that the charge of obstruction of Congress is improper because the House failed to pursue judicial relief for the president’s failure to comply with its subpoenas and requests for information. He asserts that by not giving the White House an opportunity to challenge subpoenas the House “effectively made the seeking of judicial review a ‘high crime and misdemeanor.'”

I think Turley is wrong for a number of reasons, but whether he is right or wrong is not so important at this juncture. My concern is that the Senate will acquit the president on the obstruction of Congress charge without first hearing from witnesses or obtaining documents that were withheld from the House. This action would be (reasonably) construed as standing for the proposition that the president can withhold any information he pleases from Congress, regardless of the reason or whether any privilege is invoked.

Here Turley has a suggestion which is worth considering. (I made a similar suggestion independently so I will share the blame.) Senators could offer a motion to dismiss the second article on the condition that the White House makes available the witnesses and documents the Senate needs to properly evaluate the first article, abuse of power. In essence, this would allow the president to purge his contempt by agreeing to provide the disputed information, something that Congress routinely allows contumacious witnesses to do.

On one point I am not in agreement with Turley, however. He suggests that the White House should still have the opportunity to litigate privilege claims. This is impractical and improper. Assuming the White House is allowed to raise privilege claims as to specific questions or documents, going to a federal district judge for a decision is (1) inconsistent with the constitutional design, which gives the Senate the sole power to try impeachments; (2) totally impractical (is the Senate going to wait while each objection is litigated to the Supreme Court?); and (3) downright silly in a presidential impeachment trial. You have the (expletive deleted) chief justice sitting right there! Let him rule.

This solution has something for everyone. The president and his defenders get half of the charges dismissed. The House managers get the evidence they have demanded. The Senate majority leader gets an assurance the trial will not drag on indefinitely. There is at least a measure of transparency and accountability for the president’s misconduct. And the House and Senate preserve at least a measure of their authority and dignity.

Who Decides When the Chief Justice Presides?

A few days ago I tweeted the following in regard to the debate over whether President Trump has actually been impeached:

There is a simple way to resolve this. @senatemajldr should send a note to the Chief Justice, notifying him of the House vote. If the CJ shows up at the Senate the next day, Trump is impeached. If not, six more weeks of winter.

This was intended to be a joke. (In case you were wondering whether I know the difference between the chief justice and a groundhog). On second thought, though, it raises a couple of interesting points. (Well, I think they’re interesting. You can decide for yourself.).

First, while the debate over whether Trump has been impeached is largely rhetorical, there is a substantive constitutional question underlying it. Has the House completed the actions required to allow the Senate to commence an impeachment trial? Or is it necessary for the House to take additional steps (such as providing formal notice, appointing managers, or exhibiting the articles of impeachment) before the Senate may constitutionally exercise the power to try impeachments?

I emphasize the question of constitutional power, as distinct from the operation of the Senate’s impeachment rules, which themselves may require the House to provide formal notice before a trial may begin. These rules are subject to amendment or reinterpretation by the Senate, but there is also a constitutional limitation on the Senate’s authority which is beyond the power of that body to change. The Constitution implicitly forbids the Senate from trying an impeachment until its jurisdiction has been invoked by action of the House. Cf. Jefferson’s Manual Sec. LIII (“The Lords can not impeach any to themselves, nor join in the accusation, because they are the judges.). The question is whether the House’s impeachment vote is sufficient as a constitutional matter to trigger the Senate’s jurisdiction.

This question is not answered by the fact that the Constitution gives the House the sole power of impeachment and the Senate the sole power to try impeachments. Each house has exclusive authority to determine how to exercise its own power, but this does not mean it has the exclusive authority to determine when the power exists in the first place (or what the courts would call “jurisdiction to determine jurisdiction”). Such an issue would arise if the House attempted to impeach or the Senate attempted to try a person who claimed not to be subject to the impeachment power at all (e.g., a private citizen). It similarly arises if there is a dispute whether an individual has been impeached such that the Senate’s power to try the impeachment is invoked.

Let’s imagine then in the current situation that the Senate attempts to act upon the House’s impeachment of President Trump. The House could take the position that the Senate has not yet acquired jurisdiction and lacks the power to act. For the reasons noted above, this dispute would be distinguishable from  questions relating to the Senate’s authority to determine how to “try” an impeachment, which were found to be nonjusticiable by the Supreme Court. See Nixon v. United States, 506 U.S. 224 (1993). Nonetheless, it is unlikely that a court could or would arbitrate such a dispute between the houses.

This, however, is where the second interesting point arises. The Senate cannot exercise its power to try this impeachment without summoning the chief justice to preside. See Nixon, 506 U.S. at 230 (noting there are “three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried.”). If the Senate’s jurisdiction is in controversy, the House could ask the chief justice not to appear. Arguably, the chief justice would have to resolve the jurisdictional question before appearing in the Senate.

It is perhaps more likely that the chief justice would conclude that this motion should be presented to him in his capacity as presiding officer (e.g., after he has appeared and taken the oath). Suppose then that the chief justice, as presiding officer, decides that the Senate lacks jurisdiction. Should this ruling be appealable to the Senate? If the Senate overrules the chief justice, is he obligated to preside over a trial he believes to be constitutionally invalid? These questions have no clear answer and, as far as I know, there is no precedent to provide guidance.

These questions illustrate the difficulty the Senate would face if it attempted to unilaterally dismiss the impeachment (for want of prosecution or for any other reason) without the chief justice’s acquiescence. Notwithstanding the Justice Department’s suggestion to the contrary, the chief justice’s role in an impeachment trial is far more than merely administrative.

One might say that confusing the chief justice with a parliamentarian is almost as bad as confusing him with a groundhog. (Ok, that would be an odd thing to say, but you get the point.).

The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial

The Constitution mentions the chief justice for one purpose only, and apparently it is so he can serve as Charlie McCarthy to Liz McDonough’s Edgar Bergen. Or so one would understand from the Department of Justice’s brief in In re Application of the Committee on the Judiciary, United States House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, currently pending before the D.C. Circuit.

Continue reading “The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial”

Impeachment and Disqualification

The proposed articles of impeachment against President Trump call not only for his removal from office, but for his “disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” No doubt the drafters of these articles assume such disqualification would prevent Trump from ever again serving as president. Readers of this blog, however, are aware that this is no longer an uncontested proposition (see here, here, here, here, here, here, and, most recently, here for a few of our prior discussions of this issue).

While I am aware that the president’s conviction and removal, much less disqualification, remain unlikely events, if he were to be disqualified it would be extremely important that there be as much clarity as possible on this issue. I have little doubt that should the Senate disqualify Trump from future office, he would not hesitate to seize upon the argument that the presidency does not constitute an “office of honor, trust, or profit under the United States” within the meaning of the Disqualification Clause. Moreover, members of the House who will vote on articles of impeachment and members of the Senate who will presumably vote on conviction and removal, and possibly on disqualification as well, are entitled to know of the existence of this issue.

I therefore propose that before voting on articles of impeachment, the House consider and approve a resolution along the following lines: “Resolved, That in the considered judgment of this House, the Office of President of the United States of America is an Office of honor, Trust or Profit under the United States within the meaning of the Sixth Clause of the Third Section of the First Article of the Constitution of the United States.”

Subpoenas, Recalcitrant Witnesses, and the Senate Impeachment Trial

Law Twitter is abuzz (I guess this is a mixed metaphor) about this TPM post by Josh Marshall, who makes the following points regarding an impeachment trial in the Senate: (1) the House will have the opportunity to request subpoenas for any witnesses it wishes, including those who refused to appear during the House proceedings (e.g., Giuliani, Mulvaney, Bolton); (2) the chief justice will likely make a ruling on these requests in the first instance (the Senate could  overrule him, but probably would not); and (3) the courts will not interfere with these subpoenas because the trial of impeachment is solely a matter for the Senate. See Nixon v. United States, 506 U.S. 224 (1993). He therefore posits that the House will have a much better chance of forcing reluctant witnesses to testify in the trial than it has had in the course of its own impeachment inquiry.

I will assume that points 1 and 2 are correct, though it remains to be seen whether the Senate will restrict witnesses up front and whether the chief justice will choose to rule on motions in the first instance or simply refer them to the Senate. But what happens if the House requests that certain witnesses be subpoenaed and these requests are granted by the chief justice and/or the Senate?

As a practical matter, there will be tremendous pressure on the witnesses to comply. It is one thing to defy the authority of the House with the backing of executive branch lawyers who maintain, however implausibly, that the impeachment inquiry is illegitimate and unconstitutional.  It is quite another to defy a subpoena signed by the chief justice of the United States pursuant to the Senate’s unquestionable constitutional authority to conduct an impeachment trial of the president. It will be particularly difficult for a private citizen like Giuliani, who does not even have the veneer of “absolute immunity” or some other constitutionally based privilege, to justify a refusal to appear. But even a witness who asserts such a privilege would have to consider carefully the possibility of future prosecution for contempt of Congress or other potential consequences (Mulvaney, Bolton and Giuliani are all lawyers, for example, who could be subject to professional discipline).

If, however, a witness chooses to defy the subpoena, matters get more complicated. The fact that the Senate has exclusive jurisdiction over the conduct of an impeachment trial does not, in itself, answer the question of how to force a recalcitrant witness to obey its commands.

Here it is important to distinguish between two distinct powers that the Senate could exercise. The most frequently discussed is the contempt power, which we have been reviewing at some length. But the Senate also has the power to issue a warrant of attachment, which directs the Sergeant at Arms to arrest an individual and bring him before the bar of the Senate to be interrogated. See Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616-20 (1929) (holding that the Senate could use an arrest warrant to bring before it a witness in an elections case); McGrain v. Daugherty, 273 U.S. 135, 158 (1927) (approving the same procedure in a legislative oversight investigation). The arrest warrant serves as an alternative for witnesses who cannot be relied upon to comply with a subpoena.

If the Senate is willing to employ such process, it seems to me extremely likely that it will be effective. I do not expect that the witnesses in question would  attempt to flee or physically resist the Sergeant at Arms. I certainly would not expect the executive branch to offer physical protection against execution of a warrant signed by the chief justice. Of course, if I am wrong about this, we would be in a true constitutional crisis.

More plausibly, the witnesses could attempt to challenge their arrest through a habeas proceeding. For example, Mulvaney, Bolton or other current or former senior White House advisors could argue that they are absolutely immune from congressional process, even in the context of an impeachment proceeding. I believe that this argument would have a near zero chance of success. In addition to the infirmities of the absolute immunity position which we have previously discussed, the Senate would have a strong argument that the courts lack jurisdiction even to consider the merits of the issue given its exclusive authority over impeachment. And leaving all that aside, it is difficult to imagine a federal district judge interfering with an arrest warrant signed by the chief justice.

The arrest warrant, however, only ensures that the witness’s physical appearance before the Senate. It does not address what happens if the witness still refuses to answer questions or produce documents. In that case, the Senate would have to employ the contempt power in order to force the witness to comply. This would impose substantially greater costs on the Senate. For one thing, it would have to interrupt the impeachment trial to conduct a collateral proceeding in which the witness would be asked to show cause why he should not be held in contempt. For another, if the witness is adjudged guilty of contempt, the Sergeant at Arms would have to keep him in custody until he agrees to testify (or the impeachment trial concludes). There would also be a greater risk of judicial interference if a witness is held for a substantial period of time.

In all likelihood, though, it will not be necessary for the Senate to take things that far. If the Senate subpoenas witnesses requested by the House and indicates that it is serious about enforcement (whether by way of criminal referral or otherwise), I expect those witnesses to appear and answer questions (though there may be some assertions of executive privilege).

Kilbourn and Chapman and Rao. Oh my.

As it happens, the decision in Trump v. Mazars USA (D.C. Cir. Oct. 11, 2019) coincides nicely with our discussion of the congressional contempt power. Although Mazars involved the validity of a congressional subpoena, not the exercise of the contempt power per se, the cases we are about to encounter are quite relevant to an analysis of the D.C. Circuit’s opinion, particularly with regard to Judge Rao’s remarkable dissent.

Kilbourn v. Thompson

Following its decision in Anderson v. Dunn, 19 U.S. 204 (1821), the Supreme Court next had occasion to consider the contempt power in Kilbourn v. Thompson, 103 U.S. 168 (1880). Kilbourn arose out of a House special committee’s investigation into the bankruptcy of Jay Cooke & Co., a private firm with large investments in a somewhat shady “real estate pool”; the House resolution  establishing the committee recited that the government of the United States was a creditor of the bankrupt firm as the result of “improvident deposits by the Secretary of the Navy” of public moneys at the firm. 103 U.S. at 171. The resolution further recited that the bankruptcy trustee  “has recently made a settlement of the interest of the estate . . . to the disadvantage and loss, as it is alleged, of the numerous creditors of said estate, including the government of the United States, and . . . the courts are now powerless by reason of said settlement to afford adequate redress to said creditors.” Id.

Hallet Kilbourn, a real estate broker with knowledge of the private investments in question, was subpoenaed by the House to provide testimony and documents regarding the matter. He declined to do so, denying “the right of the House to investigate private business arbitrarily,” but stated that “if either the committee or the House would assert that the production of his private papers, or the revelation of his private business, would promote any public interest, or if any private individual would assert on oath that the papers asked for would lead to the detection of corruption, he would respond freely to all demands for information or papers.” 2 Hinds’ Precedents § 1609.

The House then ordered that the Speaker issue an arrest warrant for Kilbourn, pursuant to which the recalcitrant witness was brought before the bar of the House. When he continued to refuse to answer, the House held him in contempt and ordered the Sergeant-at-Arms to keep him in custody until such time as he was willing to provide the information demanded. 103 U.S. at 175; 2 Hinds’ Precedents § 1609.

While Kilbourn was in custody, he was indicted by a federal grand jury under the criminal contempt of Congress statute. This precipitated a conflict between the legislative branch and the executive/judicial branches when the U.S. marshal, with a warrant from the D.C. court, attempted to take custody of Kilbourn from the Sergeant-at-Arms. 2 Hinds’ Precedents § 1609. The Sergeant-at-Arms refused, and the House actually considered a Blackstonian resolution that would have asserted that the House, not the courts, had the ultimate right to determine the disposition of the prisoner. Id. The House rejected this resolution, however, and authorized the Sergeant-at-Arms to obey the court’s writ of habeas corpus. Id. The court eventually determined that Kilbourn should be released by the Sergeant-at-Arms and taken into custody by the U.S. marshal. Id.

Kilbourn subsequently sued the House for false imprisonment. Perhaps due to the prior tension with the executive branch, the House was represented by private counsel in the case. See Representation of Congress and Congressional Interests in Court: Hearings Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 94th Cong., 2d sess. 511-12 (1974-75). For whatever reason, the House’s position was much less warmly received when it reached the Supreme Court than it had been in Anderson.

While the Anderson Court embraced the key arguments of the “pro-contempt” side of congressional debates (particularly the argument that the contempt power was an absolute necessity to protect the functioning of Congress), the Kilbourn Court adopts many of the principal arguments of congressional opponents of contempt. It begins with the observation that Congress’s powers are “dependent solely on the Constitution,” “either expressly or by fair implication.” 103 U.S. at 182. As no express power to punish contempts is granted, “advocates of this power have, therefore, resorted to an implication of its existence founded on two principal arguments . . . (1) its exercise by the House of Commons of England, from which country we, it is said, have derived our system of parliamentary law, and (2) the necessity of such a power to enable the two Houses of Congress to perform the duties and exercise the power the Constitution has conferred on them.” Id. at 182-83. Continue reading “Kilbourn and Chapman and Rao. Oh my.”

Representative Forsyth on Impeachment and the Contempt Power

As part of my series on impeachment and the contempt power, I have been reading the 1818 House debate on the contempt proceeding against Colonel John Anderson. I will have more to say on this subject presently, but today I want to flag an argument made by Representative Forsyth, who was one of the leading figures in the debate. The question before the House was whether it possessed the power to punish Anderson, who had attempted to bribe a member of the House. Forsyth argued strongly that the House did indeed possess this power.

In citing these remarks, it is important to emphasize that Anderson’s case had nothing whatsoever to do with impeachment or with any alleged misconduct by the president or any executive branch officer. Rather, Forsyth discusses impeachment (as did several others on his side of the argument) as evidence that the Constitution necessarily contemplated that the House could exercise the contempt power:

Judging that the time might arrive when a President would conspire with corrupt and ambitious men, of his own country or of a foreign nation, to change his temporary and limited authority to a permanent and despotic power, [the framers] supposed a sufficient barrier was erected to defeat such conspiracy, by giving to this House the power of impeachment, and the Senate the authority to judge and punish the offender, when brought to the bar by the charges of the people, and convicted by proper evidence. Has it not occurred to the members of this House, especially those [who argued the House lacked the power to punish for contempt], that the efficacy of this provision resides wholly in the power of the House and Senate, respectively, to issue process of attachment for contempt?

31 Annals of Congress 745 (emphasis added). Again, Forsyth is advancing a hypothetical that illustrates most clearly, in his view, that the House may punish for contempt. He continues:

A President forms treasonable designs against the United States. By one those fortunate events which, in the order of Providence, usually occurs to defeat the machinations of guilt, a partial discovery of the design is made, and an inquiry is instituted; you ascertain the sources from which which accurate and certain information is to be procured. How are you to compel the production of the treasonable correspondence in their custody? By attachment for contempt.

Id. (emphasis added). Forsyth had a vivid imagination, did he not?

But he doesn’t stop there. He anticipates the argument that a law could be passed making it a crime to withhold information from Congress (as it would be about 40 years later). Such a law would be inadequate:

Sir, it is vain to say we can provide by law for such an occurrence. Such provision is impossible. You make laws, but these laws are nugatory. You may provide penalties, but to inflict them must be judicial process, trial, conviction and sentence. The inevitable delay is ruinous to the country, and gives to the traitors the time to consummate their horrible designs. But even the guilty witness, the contemner of your authority, escapes the punishment provided by your law. The same Constitution under which you defined his offense, and annexed an appropriate punishment, gives to the President, for whom he commits it, the power of pardoning the offender. You have the consolation to know that he is convicted, and he has the consolation of laughing at an impotent branch of the Legislature, called, in derision, the Grand Inquest of the Nation!

Id. (emphasis added).

Note that Forsyth anticipated that a statutory contempt procedure would be inadequate because it would take too long and because the president would in any event pardon the guilty witness who was acting on his behalf. But he did not anticipate that the president could block prosecution in the first place.

Even Forsyth could not imagine the Office of Legal Counsel.

Inherent Contempt and Impeachment

Recently the Good Government Now organization (with which I am loosely affiliated) has been advocating the revival of inherent contempt as a means of compelling executive branch officials to provide information demanded by Congress. As you probably know (if you read this blog), inherent contempt allows either house of Congress to arrest individuals who defy its orders and imprison them until they comply. Under a proposal by my friend and former colleague Mort Rosenberg, the House would adopt a new inherent contempt procedure in which fines, rather than imprisonment, would be the principal sanction to compel executive branch officials to comply with subpoenas and other demands for information.

While I do not object to the use of inherent contempt in the proper circumstances, I have long been skeptical of using it as a means of resolving legislative-executive disputes over information. This is so both for constitutional and practical reasons. The constitutional issues we will get into in more detail in future posts. For now, the important point is that those issues arise primarily in the context of ordinary congressional oversight. The calculus is different in the context of a judicial proceeding such as impeachment. The argument for employing inherent contempt against recalcitrant witnesses, including executive branch officials, in an impeachment proceeding is constitutionally much stronger for reasons I will endeavor to explain in upcoming posts.

The practical problems, on the other hand, are another matter. See Andrew McCanse Wright, Congressional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881, 933 (2104) (“To say the least, it would be impractical and unwise for congressional security forces to attempt to detain executive branch officials and haul them off to the congressional brig, although commentators occasionally call for it.”).  For one thing, there is not actually any “congressional brig,” at least not one suitable for holding anyone for a significant period of time. For another, there is the “specter of interbranch violence,” particularly for detainees that have their own security details. See id. These problems are not ameliorated by the fact that the proceeding involves impeachment rather than oversight.

Arguably, the use of fines could help to address the practical problem. As a general rule, I doubt that Congress has the authority to impose fines as a form of punishment, but I think there may be a way to use them in the context of an impeachment proceeding that would stand up in court. Therefore, if the House is considering formally authorizing an impeachment proceeding, it should seriously consider a provision to authorize the use of inherent contempt, including monetary fines, against those who withhold information from the inquiry. Importantly, however, this authority should be limited to impeachment.

I will lay out the reasons for my position in a series of posts, beginning with some historical background on legislative privilege and contempt.

Impeachment and Constitutional Deliberation

The House Judiciary Committee has filed its long awaited lawsuit against Don McGahn, seeking declaratory and injunctive relief from the court with respect to McGahn’s refusal to appear before the committee to testify regarding his knowledge of matters described in the report of Special Counsel Robert S. Mueller III. Specifically, the committee is interested in matters such as “how President Trump used his official power to oust Special Counsel Mueller and end his investigation; to force then-Attorney General Jeff Sessions to transgress Department of Justice (DOJ) ethics rules to limit the scope of Mueller’s investigation; to demand that White House staff generate false accounts of the President’s conduct; and to influence witnesses not to cooperate with the investigation.” Complaint ¶ 2. The complaint repeatedly emphasizes that it needs this information in order to decide whether to recommend articles of impeachment against the president. See Complaint ¶¶ 1, 4, 10, 17, 19, 57, 61-62, 64, 95, 97, 100 & 105.

All of this is well and good. As we have discussed, McGahn is an important witness and there is no merit to DOJ’s claim that he is “absolutely immune” from testifying before Congress. The committee’s express invocation of the impeachment power further strengthens its claim for judicial relief and undermines what little persuasive value the OLC opinions on absolute immunity might otherwise have had.

It is important, however, not to conflate the committee’s litigation position and its constitutional responsibility regarding impeachment. The McGahn lawsuit is focused on substantiating specific allegations raised in the Mueller report, namely the obstruction of justice matters discussed in volume 2. See Complaint ¶ 1 (committee “is now determining whether to recommend articles of impeachment against the President based on the obstructive conduct described by the Special Counsel.”).

While the president’s conduct as described in volume 2 of the Mueller report clearly should be an element of any impeachment inquiry, it is questionable whether obstruction of justice alone can carry the weight of impeachment in this case. This is particularly true if one views obstruction as a specific statutory crime, rather than as a more colloquial term for President Trump’s implacable opposition to the Mueller investigation (or, for that matter, any other investigation he associates with the “deep state” or his political opponents).

For one thing, the special counsel declined to reach a conclusion as to whether Trump committed the crime of obstruction. Many believe he would have reached this conclusion had it not been for the OLC opinion prohibiting the indictment of a sitting president, but Mueller himself declined to substantiate this theory and it seems inadvisable to place much reliance on an unprovable hypothetical.

In addition, there are serious legal questions regarding whether the president’s exercise of his Article II powers, such as firing the FBI director or seeking to fire the special counsel, can constitute criminal obstruction. Professor Jack Goldsmith argues that “many of the 10 events outlined in Volume II of the Mueller report could not even theoretically be crimes under the obstruction statutes as they are currently written.” This is a controversial position, but it is not a frivolous one. It is also not an issue likely to be settled in the course of an impeachment proceeding.

Finally, focusing on questions of criminal obstruction requires the committee to evaluate Trump’s state of mind. See Complaint ¶ 66 (“McGahn’s testimony would provide significant evidence of the President’s motivations for his actions.”). I am skeptical, however, that McGahn is going to be able to shed much light on the president’s motives. Other presidents (Nixon and Clinton) have attempted to obstruct legal investigations or proceedings, but they did so only when they felt they had no other choice. Trump’s words and actions in general, and specifically in connection with the Russia probe, appear to be visceral in nature and to have little connection to a rational calculation of the consequences. Perhaps this is a clever strategy on Trump’s part, but I expect McGahn is as perplexed as the rest of us.

This is by no means to suggest that Trump’s conduct is unimpeachable, so to speak. The constitutional standard of high crimes and misdemeanors is quite different than the criminal standard for obstruction of justice. Thus, Goldsmith observes that “[i]n combination with Trump’s other abuses of power over the past two and a half years, I have little trouble concluding that Trump committed impeachable offenses, should Congress want to pursue that option.” The point here is that Congress’s task is more complicated than simply evaluating a handful of presidential actions to determine whether they satisfy the elements of criminal obstruction of justice. It must decide how to interpret and apply the constitutional standard of “high crimes and misdemeanors,” which is by design a more discretionary and less determinate function than that performed by a criminal court. See Neal Katyal, Impeachment as Congressional Constitutional Interpretation, 63 Law & Contemp. Problems 169, 175-79 (2000). And it must do so in the context of Trump’s highly unusual behavior in office. Continue reading “Impeachment and Constitutional Deliberation”

I’ll Take My Grand Jury Materials with a Hint of Impeachment

Last Friday, July 26, the House Judiciary Committee filed an application with the U.S. District Court for the District of Columbia seeking release of certain grand jury materials related to the report and investigation of former Special Counsel Robert S. Mueller III. The committee contends that the Mueller report “provided Members of Congress with substantial evidence that the President of the United States repeatedly attempted to undermine and derail a criminal investigation of the utmost importance to the nation.” Application at 1. Accordingly, “the House must have access to all 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. 

Some may view this, from a political perspective, as “impeachment lite” (Twitter wags had a variety of other terms like “impeachment-tinged” and “impeachment-infused”). From a legal perspective, however, I think this is probably good enough, at least for this particular controversy. Here’s why.

The committee’s primary argument is that the court should authorize the release of the grand jury information pursuant to Fed. R. Crim. P. 6(e)(3)(E), which provides “[t]he court may authorize disclosure of a grand jury matter . . . (i) preliminarily to or in connection with a judicial proceeding.” This provision is applicable here, the committee contends, because it is conducting an investigation to determine whether to recommend articles of impeachment with respect to the president. Application at 30-31. It bears emphasis that the committee does not contend this provision applies to congressional investigations outside the context of impeachment, nor would there be any basis for it to do so.

As we have discussed, controlling authority in the D.C. Circuit establishes that an impeachment proceeding qualifies as a “judicial proceeding” within the meaning of Fed. R. Crim. P. 6(e)(3)(E)(i). Specifically, a Senate impeachment trial is judicial in character and a House impeachment inquiry is therefor preliminary to or in connection with a judicial proceeding for these purposes. Application at 28-29.

To be sure, there is no Supreme Court authority on point, and it is possible that the Court would conclude that the term “judicial proceeding” refers to a proceeding conducted by the judiciary, not merely a proceeding that is judicial in character. (Of course, a Senate impeachment trial of the president is presided over by the chief justice, somewhat blurring this distinction.). However, if the Court were to reject the committee’s position in this respect, I strongly suspect that it would accept its alternative argument (currently foreclosed in the D.C. Circuit) that a federal court retains inherent authority to disclose grand jury materials under these circumstances. See Application at 40-41. I do not believe the Supreme Court would hold that there is no legal mechanism by which grand jury material relevant to impeachment can be transmitted to the House (or Senate), a conclusion that would be in considerable tension with the Constitution’s preference (at least) for impeachment rather than indictment of a sitting president. See, e.g., Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2158 (1998) (citing with approval President Nixon’s argument that “[w]hatever the grand jury may claim about a President, its only possible proper recourse is to refer such facts, with the consent of the court, to the House and leave the conclusions of criminality to the body which is constitutionally empowered to make them”); see also id. at 2156 (“any information gathered with respect to executive branch officials that could reflect negatively on their fitness for office should be disclosed to Congress”).

The more difficult issue for the committee is establishing that disclosure of grand jury materials in these circumstances would be for purposes of impeachment, rather than simply for general oversight. As I have written elsewhere, the committee would clearly be in a stronger position if the House had formally initiated an impeachment inquiry. That being said, nothing in the language of Rule 6(e)(3)(E)(i) expressly requires the formal initiation of any particular proceeding and to the contrary the rule suggests that the disclosure may occur before (“preliminarily to”) such initiation.

Here it is worth noting that while it is the Senate impeachment trial that has been held to be a “judicial proceeding” for these purposes, there is also a strong argument that the House’s exercise of its power of impeachment likewise constitutes a judicial proceeding. Certainly the House’s power is judicial, rather than legislative, in nature. It is possible, however, to argue that the House’s proceeding are less judicial than the Senate’s because the latter performs the adjudicative function of a criminal court while the former performs the investigative function of a grand jury. In any event, it probably makes little difference to the outcome of the committee’s application because in either case the committee must persuade the court that its current investigation is sufficiently tied to the impeachment process.

To meet this burden, the committee points to the following: (1) impeachment falls within the committee’s jurisdiction and articles of impeachment (including in the current congress H. Res. 13, a resolution calling for the impeachment of President Trump) are invariably referred to the committee; (2) the committee has repeatedly indicated in various ways, such as statements by the chairman and a contempt report adopted by vote fo the committee, that it is assessing whether to recommend articles of impeachment with respect to the president; (3) the House Rules Committee, in its report accompanying H. Res. 430, similarly explained that the committee was considering whether to recommend such articles of impeachment; and (4) the full House voted to adopt H. Res. 430, which confirms the committee’s investigatory authority with regard to the Mueller report and related matters and expressly authorizes it to continue its efforts to obtain information, including by filing an application for grand jury material pursuant to Fed. R. Crim. P. 6(e)(3)(E). This authorization by the House implicitly recognizes that the committee is seeking grand jury information for impeachment purposes since, as mentioned previously, there is no other basis upon which the committee could avail itself of this provision.

While there are no guarantees in litigation, in my view this is a pretty strong case. Given the language of the rule and the past flexible practice in the context of impeachment, the committee should prevail in its application. Whatever the outcome, though, it will be interesting to see how the Justice Department responds.