Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
In re APPLICATION OF THE
COMMITTEE ON THE JUDICIARY, U.S.
HOUSE OF REPRESENTATIVES, FOR AN Grand Jury Action No. 19-48 (BAH)
ORDER AUTHORIZING THE RELEASE
OF CERTAIN GRAND JURY MATERIALS Chief Judge Beryl A. Howell
MEMORANDUM OPINION GRANTING THE APPLICATION OF THE COMMITTEE
ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES
Table of Contents
I. BACKGROUND ......................................................................................................................... 3
A. The Special Counsel’s Investigation ....................................................................................... 3
B. Release of the Mueller Report .............................................................................................. 13
C. The Instant Proceeding......................................................................................................... 16
II. LEGAL STANDARD ................................................................................................................ 18
III. DISCUSSION ........................................................................................................................... 19
A. Rule 6(e)’s “Judicial Proceeding” Requirement is Satisfied Because an Impeachment Trial is
Such a Proceeding ............................................................................................................... 21
1. The Term “Judicial Proceeding” in Rule 6(e) Has a Broad Meaning ..................................... 22
2. An Impeachment Trial is Judicial in Nature............................................................................ 26
3. Historical Practice Before Enactment of Rule 6(e) Informs Interpretation of that Rule ......... 34
4. Binding D.C. Circuit Precedent Forecloses Any Conclusion Other Than That an
Impeachment Trial is a “Judicial Proceeding” ........................................................................ 37
B. HJC’s Consideration of Articles of Impeachment is “Preliminarily To” an Impeachment Trial . 44
1. Governing Legal Principles Demonstrate That House Proceedings Can be “Preliminarily To”
a Senate Impeachment Trial .................................................................................................... 44
2. HJC’s Primary Purpose is to Determine Whether to Recommend Articles of Impeachment . 47
a. DOJ’s Proposed “Preliminarily To” Test is Contrary to Baggot ...................................... 47
b. No House “Impeachment Inquiry” Resolution is Required .............................................. 49
c. The Record of House and HJC Impeachment Activities Here Meets the “Preliminarily
To” Test ............................................................................................................................ 55
3. Requiring More Than the Current Showing by HJC, as DOJ Demands, Would Improperly
Intrude on Article I Powers Granted to House of Representatives.......................................... 58
4. DOJ’s Remaining Objections are Unpersuasive ..................................................................... 61
C. HJC Has a “Particularized Need” for the Requested Materials ................................................ 62
1. Disclosure is Necessary to Avoid Possible Injustice ............................................................... 64
2. The Need for Disclosure Outweighs the Need for Continued Secrecy ................................... 71
3. Scope of Disclosure Authorized .............................................................................................. 74
IV. CONCLUSION ......................................................................................................................... 74
1
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
2
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.
I. BACKGROUND
What follows begins with a brief review of the initiation of the Special Counsel’s
investigation, the key findings in the Mueller Report and the grand jury secrecy redactions
embedded therein, as well as the significant gaps in the Special Counsel’s investigation that
contributed to the Special Counsel assessment that “[t]he evidence we obtained about the
President’s actions and intent presents difficult issues that would need to be resolved if we were
making a traditional prosecutorial judgement.” Mueller Report at II-8.1 Next reviewed is
Congress’s response to the release of the public redacted version of the Mueller Report and
ensuing—and ultimately unsuccessful—negotiations with DOJ to obtain the full Report and
related investigative materials, leading HJC to file the instant application, pursuant to Federal
Rule of Criminal Procedure 6(e)(3)(E)(i).
A. The Special Counsel’s Investigation
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
1
As noted, the Mueller Report is in two volumes, with each volume re-starting the page numbering. Thus,
citations to this report use a nomenclature indicating the page number in either Volume I or Volume II.
3
Order”) (May 17, 2017) (capitalization altered).2 Prior to the Special Counsel’s appointment, the
Federal Bureau of Investigation (“FBI”) had already initiated “an investigation into whether
individuals associated with the Trump Campaign [had] coordinat[ed] with the Russian
government” to interfere in the 2016 presidential election. Mueller Report at I-1. The order
authorizing the Special Counsel’s appointment thus had the effect of transferring the ongoing
FBI investigation to his office. See Appointment Order ¶ b (authorizing the Special Counsel “to
conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before
[Congress] on March 20, 2017”). The Special Counsel was also granted “jurisdiction to
investigate matters that arose directly from the FBI’s Russia investigation, including whether the
President had obstructed justice in connection with Russia-related investigations” and
“potentially obstructive acts related to the Special Counsel’s investigation itself.” Mueller
Report at II-1. Pursuant to this grant of authority—and upon receiving evidence “relating to
potential issues of obstruction of justice involving the President”—the Special Counsel
“determined that there was a sufficient factual and legal basis to further investigate . . . the
President.” Id. at II-12.
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 of the Report as highly relevant to resolving the
2
Then-Attorney General Jeff Sessions had recused himself “from any existing or future investigations of any
matters related in any way to the campaigns for President of the United States,” Press Release, U.S. Dep’t of Justice,
Attorney General Sessions Statement of Recusal (Mar. 2, 2017), making the Deputy Attorney General the “Acting
Attorney General, by operation of law” as to such matters, In re Grand Jury Investigation, 315 F. Supp. 3d 602, 621
(D.D.C. 2018), aff’d, 916 F.3d 1047 (D.C. Cir. 2019).
4
current legal dispute. Indeed, DOJ submitted the public redacted version of the Mueller Report
as exhibits to support its arguments. See DOJ’s Resp., Exs. 8 (Volume I), 9 (Volume II), ECF
Nos. 20-8, 20-9. Therefore, a recounting of some of the key events chronicled in and
conclusions (or lack thereof) reached by the Special Counsel in the Mueller Report is in order.
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
5
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:
Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22
release, Manafort also spoke with candidate Trump [redacted]. Manafort also
[redacted] wanted to be kept apprised of any developments with WikiLeaks
and separately told Gates to keep in touch [redacted] about future WikiLeaks
releases.
According to Gates, by the late summer of 2016, the Trump campaign
was planning a press strategy, a communications campaign, and messaging
based on the possible release of Clinton emails by WikiLeaks. [Redacted]
while Trump and Gates were driving to LaGuardia Airport. [Redacted],
shortly after the call candidate Trump told Gates that more releases of
damaging information would be coming.
Id. at I-53–54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206
redacted due to grand jury secrecy).
6
The public version of Volume I contains over 240 redactions on the basis of grand jury
secrecy.3 These redactions occur in parts of the Mueller Report that include discussion of the
Trump Tower Meeting, then-candidate Trump’s discussion with associates about releases of
hacked documents, and Manafort’s contacts with Kilimnik. See id. at I-54 & n.206, 111–12,
117, 120, 136–37, 140, 143.
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
3
Redactions in the Mueller Report were not applied by the Special Counsel’s Office but “by Department of
Justice attorneys working closely together with attorneys from the Special Counsel’s Office, as well as with the
intelligence community, and prosecutors who are handling ongoing cases.” William P. Barr, Attorney General,
Department of Justice, Attorney General William P. Barr Delivers Remarks on the Release of the Report on the
Investigation into Russian Interference in the 2016 Presidential Election (Apr. 18, 2019),
https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-remarks-release-report-investigation-
russian.
7
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.4 Again, the Mueller Report recounts an incident when then-candidate Trump spoke to
associates indicating that he may have had advance knowledge of damaging leaks of documents
illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks’s July 22,
2016 release of hacked documents, [Manafort] spoke to Trump [redacted]; Manafort recalled
that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign
4
The reason for the fewer grand jury–related redactions in Volume II addressing “questions about whether
[the President] had obstructed justice,” Mueller Report at II-1, becomes clear upon analysis. The introduction to this
part of the Mueller Report provides assurances that “we conducted a thorough factual investigation in order to
preserve the evidence when memories were fresh and documentary materials were available.” Id. at II-2. As the
Mueller Report highlights, “a President does not have immunity after he leaves office,” and, quoting DOJ policy, the
Report further observes that “an immunity from prosecution for a sitting President would not preclude such
prosecution once the President’s term is over or he is otherwise removed from office by resignation or
impeachment.” Id. at II-1 & n.4 (quoting A Sitting President’s Amenability to Indictment and Criminal Prosecution,
24 Op. O.L.C. 222, 255 (2000) [hereinafter OLC Op.]). Yet, some individuals whose actions figure prominently in
incidents described in Volume II were never compelled to testify under oath before the grand jury to preserve their
testimony. For example, several witnesses, who simply declined to speak to the Special Counsel, as is their right,
were not pursued with the tools available to prosecutors to gather material evidence in a criminal investigation.
Certain consequences flow from these prosecutorial choices—other than the obvious fact that the grand jury was
given no opportunity to consider this evidence—namely: the testimony of these individuals is not formally preserved
but also any statements or documentary evidence that was obtained from these individuals is not protected by grand
jury secrecy. See In re Application of the Committee on the Judiciary, No. 19-gj-48, 2019 WL 5268929, at *1 (Oct.
17, 2019) (ordering DOJ to unseal improperly redacted portion of declaration pertaining to “identities of individuals
who did not testify before the grand jury”); DOJ’s’ Notice of Compliance with Ord. of Oct. 17, 2019 (“DOJ
Notice”), Ex. 10, Decl. of Associate Deputy Attorney General (“ADAG”) Bradley Weinsheimer ¶ 4 (“Revised
ADAG Decl.”), ECF No. 44-1 (revealing that “Don McGahn did not testify before the grand jury” and “Donald
Trump, Jr. also did not testify before the grand jury”).
8
manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on
upcoming releases. Around the same time, Gates was with Trump on a trip to an airport
[redacted], and shortly after the call ended, Trump told Gates that more releases of damaging
information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with
citation in footnote 27 redacted due to grand jury secrecy). In addition, a discussion related to
the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special
Counsel’s Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who
attended the June 9 meeting.” Id. at II-105 (redactions in original).
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 of
witnesses abroad; (5) “[e]ven when individuals testified or agreed to be interviewed, they
sometimes provided information that was false or incomplete”; and (6) “some of the individuals
we interviewed or whose conduct we investigated—including some associated with the Trump
Campaign—deleted relevant communications or communicated during the relevant period using
applications that feature encryption or that do not provide for long-term retention of data or
9
communications records.” Id. Consequently, the Mueller Report cautions that “[a] statement
that the investigation did not establish particular facts does not mean there was no evidence of
those facts.” Id. at I-2.
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
10
Bannon could account for the absent messages. Id.; see also id. at I-153–55 (extensive grand
jury redactions).5
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. at I-186.6
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
5
Both Prince and Bannon testified before congressional committees. See Testimony of Erik Prince Before
the H. Permanent Select Comm. on Intelligence, 115th Cong. (Nov. 30, 2017),
https://docs.house.gov/meetings/IG/IG00/20171130/106661/HHRG-115-IG00-Transcript-20171130.pdf; H.
PERMANENT SELECT COMM. ON INTELLIGENCE, 115TH CONG., SCOPE OF INVESTIGATION, MINORITY VIEWS at 11
(MARCH 26, 2018), https://perma.cc/D9HE-AFUH (reporting on Steve Bannon’s testimony).
6
Another example involves a July 2016 trip to Moscow by Carter Page, then a Trump Campaign official,
who gave a speech in Moscow and represented in emails to other Campaign officials that he also spoke with Russian
government officials. Mueller Report at I-96, I-98, I-101. Yet, “[t]he Office was unable to obtain additional
evidence or testimony about who Page may have met or communicated with in Moscow; thus, Page’s activities in
Russia . . . were not fully explained.” Id. at I-101. This same paragraph reporting this gap in the evidence contains
redacted references to grand jury material. See id.11
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
12
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 that no person is above the law.” Id. at II-8.
B. Release of the Mueller Report
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
13
Gen., Dep’t of Justice, to Lindsey Graham, Chairman, S. Comm. on the Judiciary, et al. 1, 4
(Mar. 24, 2019), ECF No. 20-2.7
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 of justice.” Id. at 1, 2.8
7
In his summary of the Mueller Report’s “principal conclusions,” AG Barr stated that “[t]he Special
Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated
with Russia in its efforts to influence the 2016 U.S. presidential election,” Letter from William P. Barr to Lindsey
Graham, et al., supra, at 2 (Mar. 24, 2019), and that “[t]he Special Counsel . . . did not draw a conclusion—one way
or the other—as to” whether the “actions by the President . . . that the Special Counsel investigated” “constituted
obstruction,” id. at 3. AG Barr determined that “[t]he Special Counsel’s decision to describe the facts of his
obstruction investigation without reaching any legal conclusions” left it to him as the Attorney General “to
determine whether the conduct described in the report constitutes a crime,” and he “concluded that the evidence
developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an
obstruction-of-justice offense.” Id.
8
On February 22, 2019—before the Mueller Report was submitted to AG Barr but when media reporting
suggested that the Special Counsel investigation was nearing its end—the House Committee Chairpersons had
submitted a similar request to AG Barr, noting that “because the Department has taken the position that a sitting
President is immune from indictment and prosecution, Congress could be the only institution currently situated to
act on evidence of the President’s misconduct.” HJC App., Ex. B, Letter from Jerrold Nadler, Chairman, H. Comm.
on the Judiciary, et al., to William P. Barr, Attorney Gen., Dep’t of Justice 2 (Feb. 22, 2019), ECF No. 1-3 (footnote
omitted).
14
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.,
15
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.
DOJ has granted HJC access to “the entirety of Volume II, with only grand jury
redactions” and did “the same with regard to Volume I” for “the Chairman and Ranking Member
from [HJC].” DOJ Resp. at 6 n.2. DOJ has not, however, allowed HJC to review the portions of
the Mueller Report redacted pursuant to Rule 6(e). See, e.g., HJC App., Ex. K, Letter from
Stephen E. Boyd, Assistant Attorney Gen., Dep’t of Justice, to Jerrold Nadler, Chairman, H.
Comm. on the Judiciary 4 (May 1, 2019), ECF No. 1-12 (stating that “Rule 6(e) contains no
exception that would permit the Department to provide grand-jury information to the Committee
in connection with its oversight role”).
C. The Instant Proceeding
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
16
related to the Special Counsel’s investigation. HJC App. HJC requests the release to it of three
categories of material:
1. all portions of [the Mueller Report] that were redacted pursuant to Federal
Rule of Criminal Procedure 6(e);
2. any underlying transcripts or exhibits referenced in the portions of the
Mueller Report that were redacted pursuant to Rule 6(e); and
3. transcripts of any underlying grand jury testimony and any grand jury
exhibits that relate directly to (A) President Trump’s knowledge of efforts
by Russia to interfere in the 2016 U.S. Presidential election; (B) President
Trump’s knowledge of any direct or indirect links or contacts between
individuals associated with his Presidential campaign and Russia,
including with respect to Russia’s election interference efforts; (C)
President Trump’s knowledge of any potential criminal acts by him or any
members of his administration, his campaign, his personal associates, or
anyone associated with his administration or campaign; or (D) actions
taken by former White House Counsel Donald F. McGahn II during the
campaign, the transition, or McGahn’s period of service as White House
Counsel.”
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. 33.9
Following a hearing on October 8, 2019, the parties provided supplemental submissions to
9
On August 30, 2019, the Constitutional Accountability Center submitted an amicus brief in support of
HJC’s application, see Br. of Constitutional Accountability Ctr. as Amicus Curiae in Support of HJC, ECF No. 16-1,
and, on October 3, 2019, Representative Doug Collins, HJC’s Ranking Member, submitted an amicus brief urging
denial of HJC’s application, see Mem. Amicus Curiae of Ranking Member Doug Collins in Support of Denial
(“Collins Mem.”), ECF No. 35.
17
address additional issues not covered by the initial briefing. See Min. Ord. (October 8, 2019).10
This matter is now ripe for resolution.
II. LEGAL STANDARD
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).11
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).12 The D.C. Circuit recently held, in McKeever v.
10
As part of this supplemental briefing, DOJ was directed to provide its reasoning for redacting from public
view, as grand jury material, portions of a declaration submitted by DOJ in support of its position that HJC’s
application should be denied. See Min. Order (Oct. 8, 2019). This Court determined that the declaration had been
improperly redacted and ordered DOJ to correct its error. In re Application of the Committee on the Judiciary, 2019
WL 5268929. DOJ complied with that order on October 20, 2019. See DOJ Notice.
11
The definition of “a matter occurring before the grand jury” can also encompass information “that would
‘tend to reveal some secret aspect of the grand jury’s investigation, including” the “strategy” or future “direction of
the investigation,’” Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 73 (D.C. Cir. 2018) (quoting Hodge v. FBI, 703
F.3d 575, 580 (D.C. Cir. 2013)), but the D.C. Circuit has “cautioned . . . about ‘the problematic nature of applying
so broad a definition,’” see In re Sealed Case No. 99-3091, 192 F.3d at 1001 (quoting In re Sealed Case No. 98-
3077, 151 F.3d 1059, 1071 n.12 (D.C. Cir. 1998) (per curiam)).
12
For instance, under Rules 6(e)(3)(A)(ii) and 6(e)(3)(D), the government may disclose grand jury material in
certain circumstances without a court order but must provide notice of disclosure to the court that impaneled the
grand jury. See FED. R. CRIM. P. 6(e)(3)(B), (D)(ii). In March 2016, this Court instituted a system for docketing
such notices received in this District, and since that time the government has submitted 783 notice letters. See In re
Grand Jury Disclosures, 16-gj-1 (D.D.C. 2016) (184 notices); In re Grand Jury Disclosures, 17-gj-1 (D.D.C. 2017)
(83 notices); In re Grand Jury Disclosures, 18-gj-1 (D.D.C. 2018) (244 notices); In re Grand Jury Disclosures, 19-
gj-1 (D.D.C. 2019) (272 notices). This number undercounts the actual number of disclosures, given that a single
notice often advises that grand jury information has been shared with multiple persons and entities. Among these
18
Barr, 920 F.3d 842 (D.C. Cir. 2019), reh’g denied, Order, No. 17-5149 (D.C. Cir. July 22, 2019),
docketing petition for cert., No. 19-307 (U.S. Sept. 5, 2019), that the “text of the Rule” prevents
disclosure of a “‘matter appearing [sic] before the grand jury’” “‘unless these rules provide
otherwise.’” Id. at 848 (quoting incorrectly FED. R. CRIM. P. 6(e)(2)(B)).13 In the D.C. Circuit’s
binding view, “deviations from the detailed list of exceptions in Rule 6(e) are not permitted,” id.
at 846, and thus a “district court has no authority outside Rule 6(e) to disclose grand jury
matter,” id. at 850.14
III. DISCUSSION
HJC is “not requesting the entire grand jury record” of the Special Counsel’s
investigation. HJC Reply at 24.15 Instead, HJC seeks only disclosure of the grand jury
notices were sixteen instances when grand jury information was revealed to foreign governments. DOJ has
represented that “[n]o grand jury information collected from the Mueller investigation and protected from disclosure
was shared with any foreign government pursuant to Rule 6(e)(3)(D).” DOJ’s Supplemental Submission in Resp. to
Min. Ord. of Oct. 8, 2019 (“DOJ Second Supp.”) at 2, ECF No. 40.
13
The D.C. Circuit’s narrow textual reading of Rule 6(e) is based on the subsection in the Rule that secrecy is
required “[u]nless these rules provide otherwise.” FED. R. CRIM. P. 6(e)(2)(B) (emphasis added). Yet, this
subsection is difficult to reconcile with other statutory authorities that either require or permit disclosure of grand
jury matter in civil forfeiture, financial regulatory, special–grand jury, and criminal defense contexts. See, e.g., 18
U.S.C. § 3322(a) (allowing disclosure of grand jury information to “an attorney for the government . . . for use in
connection with any civil forfeiture provision of federal law”); id. §§ 3322(a), (b)(1)(A) (authorizing disclosure of
grand jury information to “an attorney for the government for use in enforcing section 951 of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989” and to federal and state financial institution regulatory
agencies “for use in relation to any matter within the jurisdiction of such regulatory agency” when the relevant grand
jury was investigating “a banking law violation”); id. §§ 3333(a), (b) (permitting special grand juries to provide
reports that the impaneling court may make public); id. §§ 3500(b), (e)(3) (requiring disclosure to criminal
defendant of certain grand jury testimony of trial witnesses).
14
The D.C. Circuit in McKeever rejected the view articulated by this Court and several Circuit Courts of
Appeals that courts have inherent authority to disclose grand jury material. See, e.g., In re Application to Unseal
Dockets Related to the Independent Counsel’s 1998 Investigation of President Clinton, 308 F. Supp. 3d 314, 324
(D.D.C. 2018) (Howell, C.J.), appeal docketed, No. 18-5142 (D.C. Cir. May 17, 2018); In re Petition of Kutler, 800
F. Supp. 2d 42, 47 (D.D.C. 2011) (Lamberth, C.J.); see also Carlson v. United States, 837 F.3d 753, 766–67 (7th
Cir. 2016); In re Craig, 131 F.3d 99, 103 (2d Cir. 1997); Pitch v. United States, 915 F.3d 704, 707 (11th Cir. 2019),
rehearing en banc ordered and opinion vacated, 925 F.3d 1224 (11th Cir. 2019). HJC acknowledges this,
conceding that “McKeever currently forecloses the Committee from prevailing before this Court on [an inherent-
authority] argument,” but nonetheless raises inherent authority as a basis for disclosure to “preserve[] its argument”
“[i]n the event McKeever is subject to further review.” HJC App. at 40.
15
The entire grand jury record would be extensive since the Special Counsel’s investigation involved the
execution of “nearly 500 search-and-seizure warrants,” issuance of “more than 230 orders for communications
records under 18 U.S.C. § 2703(d),” “almost 50 orders authorizing use of pen registers,” “13 requests to foreign
governments pursuant to Mutual Legal Assistance Treaties,” and “more than 2,800 subpoenas under the auspices of
19
information referenced in or underlying the Mueller Report as well as grand jury information
collected by the Special Counsel relating to four categories of information pursuant to Rule
6(e)’s exception for disclosure “preliminarily to or in connection with a judicial proceeding.”
HJC App. at 26 (internal quotation marks omitted) (quoting FED. R. CRIM. P. 6(e)(3)(E)(i)).
Disclosure of grand jury information is proper under this exception when three requirements are
satisfied. The person seeking disclosure must first identify a relevant “judicial proceeding”
within the meaning of Rule 6(e)(3)(E)(i); then, second, establish that the requested disclosure is
“preliminarily to” or “in connection with” that proceeding; and, finally, show a “particularized
need” for the requested grand jury materials. See United States v. Sells Eng’g, Inc., 463 U.S.
418, 443 (1983) (“Rule 6(e)(3)([E])(i) simply authorizes a court to order disclosure
‘preliminarily to or in connection with a judicial proceeding.’ . . . We have consistently
construed the Rule, however, to require a strong showing of particularized need for grand jury
materials before any disclosure will be permitted.”); United States v. Baggot, 463 U.S. 476, 480
(1983) (explaining that the “preliminarily to or in connection with a judicial proceeding” and the
“particularized need” requirements “are independent prerequisites to ([E])(i) disclosure” (internal
quotation marks omitted)).
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.
a grand jury sitting in the District of Columbia,” and interviews of “approximately 500 witnesses,” “almost 80” of
whom “testified before a grand jury.” Mueller Report at I-13.
20
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 (1979). The need for continued secrecy is reduced,
given that the Special Counsel’s grand jury investigation has ended, and is easily outweighed 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.
A. Rule 6(e)’s “Judicial Proceeding” Requirement is Satisfied Because an
Impeachment Trial is Such a Proceeding
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 28.16 DOJ, for
its part, rejects the proposition that any congressional proceeding may qualify as a “judicial
proceeding.” DOJ Resp. at 13 (“The plain meaning of ‘judicial proceeding’ does not include
congressional proceedings.”) (capitalization altered). This dispute thus presents the threshold
issue of whether an impeachment trial in the Senate is a “judicial proceeding” under Rule 6(e).
Consideration of this issue requires an understanding of (1) what the drafters of Rule 6(e) meant
16
An impeachment inquiry in the House may itself constitute a judicial proceeding. See, e.g., Marshall v.
Gordon, 243 U.S. 521, 547 (1917) (characterizing instances when a “committee contemplat[es] impeachment” as
times that congressional power is “transformed into judicial authority”); Kilbourn v. Thompson, 103 U.S. (13 Otto)
168, 191 (1880) (explaining that the House “exercises the judicial power . . . of preferring articles of
impeachment”); Trump v. Mazars USA, LLP, No. 19-5142, 2019 WL 5089748, at *27 (D.C. Cir. Oct. 11, 2019)
(Rao, J., dissenting) (explaining that the House’s “power to investigate pursuant to impeachment . . . has always
been understood as a limited judicial power”). HJC’s primary contention, however, is not that a House
impeachment inquiry is a judicial proceeding, but that HJC’s current inquiry satisfies Rule 6(e) because that inquiry
is “‘preliminar[y] to’ an impeachment trial.” HJC App. at 29 (alteration in original). As explained infra in Part
III.B., HJC’s “preliminarily to” argument succeeds, and, consequently, whether a House impeachment inquiry
constitutes a “judicial proceeding” within the meaning of Rule 6(e) need not be addressed.
21
by “judicial proceeding,” and (2) the precise nature of an impeachment trial. Both considerations
are informed by history and, contrary to DOJ’s position, point to the same conclusion: an
impeachment trial is, in fact, a “judicial proceeding” under Rule 6(e), as binding D.C. Circuit
precedent correctly dictates.
1. The Term “Judicial Proceeding” in Rule 6(e) Has a Broad Meaning
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, 277
S.E.2d 562, 571 (N.C. 1981), overruled in part on other grounds by Fowler v. Valencourt, 435
S.E.2d 530 (N.C. 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”).17
17
DOJ relies on the definition first articulated by Judge Learned Hand in Doe v. Rosenberry, 255 F.2d 118(2d Cir. 1958). See DOJ Resp. at 14–15. That definition provides: “[T]he term ‘judicial proceeding’ includes any
proceeding determinable by a court, having for its object the compliance of any person, subject to judicial control,
with standards imposed upon his conduct in the public interest, even though such compliance is enforced without the
procedure applicable to the punishment of crime.” Doe, 255 F.2d at 120. DOJ’s reliance on this definition is
puzzling since courts—including the D.C. Circuit—have consistently recognized that Judge Hand gave “judicial
proceeding” “a broad interpretation,” In re Sealed Motion, 880 F.2d at 1379, and judges of this Court have already
twice recognized that Judge Hand’s definition encompasses an impeachment trial, see In re Report &
Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1228–30 (D.D.C. 1974) (citing Doe); In re
Uranium Grand Jury, 1979 WL 1661, at *5–7 (citing Doe) (explaining that a Senate impeachment trial “presided
over by the Chief Justice of the United States” is “very much a judicial proceeding,” id. at *7).
22
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 hearings might qualify. See In re Sealed Motion, 880 F.2d at 1380
n.16 (citing United States v. Shillitani, 345 F.2d 290, 293 (2d Cir. 1965), vacated on other
grounds, 384 U.S. 364 (1966)).
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
23
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 (1991) (citing Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546 (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, 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
24
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).18 Accordingly, while judicial power of some kind may be
necessary to make a proceeding “judicial” under Rule 6(e), the exercise of Article III judicial
power is not required.
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.”).19 This plain-meaning argument ignores the broad interpretation given
to the term “judicial proceeding” as used in Rule 6(e), see, e.g., In re Sealed Motion, 880 F.2d at18
Even the Supreme Court, in Baggot, recognized that Tax Court proceedings are “judicial proceedings”
under Rule 6(e). Although purporting not to address “the knotty question of what, if any, sorts of proceedings other
than garden-variety civil actions or criminal prosecutions might qualify as judicial proceedings under ([E])(i),” 463
U.S. at 479 n.2, the Court advised that the Seventh Circuit “correctly held” that “the IRS may seek ([E])(i)
disclosure” when a “taxpayer ha[s] clearly expressed its intention to seek redetermination of [a claimed tax]
deficiency in the Tax Court” and “the Government’s primary purpose is . . . to defend the Tax Court litigation,” id.
at 483.
19
DOJ also cites to the use of “judicial proceeding” in two other subsections of Rule 6(e)—(e)(3)(F) and
(e)(3)(G)—as generally referring to court proceedings, DOJ Resp. at 17, but this argument relies on one of the least
probative statutory-interpretation presumptions. Although “[o]ne ordinarily assumes ‘that identical words used in
different parts of the same act are intended to have the same meaning,’” “the presumption of consistent usage
‘readily yields’ to context, and a statutory term . . . ‘may take on distinct characters from association with distinct
statutory objects calling for different implementation strategies.’” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302,
319–20 (2014) (internal quotation marks omitted) (quoting Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574
(2007)). Moreover, as HJC explains, subsection (e)(3)(F) may in fact cover a Senate impeachment trial, and as to
subsection (e)(3)(G), significant textual differences distinguish this subsection from (e)(3)(E)(i). See HJC Reply at
12–13. In any event, historical practice and binding precedent guide the proper construction of Rule 6(e)(3)(E)(i),
no matter the use of the term “judicial proceeding” in other parts of the criminal procedure rules.
25
1379, and fails to grapple with the judicial nature of an impeachment trial, see infra Part III.A.2.
In any event, applying DOJ’s plain-meaning construction and imposing a requirement that a
“judge” preside to qualify as a “judicial proceeding” would not remove an impeachment trial
from Rule 6(e)’s ambit since the Chief Justice of the Supreme Court presides over any Senate
impeachment trial of the President. U.S. CONST. art. I, § 3, cl. 6.20 DOJ dismisses the Chief
Justice’s role in impeachment trials as “purely administrative, akin to a Parliamentarian,” whose
decisions can be overridden by a vote of the Senate. DOJ Resp. at 16. Even if true up to a point,
the fact remains that the Senate may grant the Chief Justice as significant a role as it sees fit.
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.
2. An Impeachment Trial is Judicial in Nature
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. This stance, in service of the
obvious goal of blocking Congress from accessing grand jury material for any purpose,
overlooks that an impeachment trial is an exercise of judicial power provided outside Article III
and delegated to Congress in Article I.21 Contrary to DOJ’s position—and as historical practice,
the Federalist Papers, the text of the Constitution, and Supreme Court precedent all make clear—
impeachment trials are judicial in nature and constitute judicial proceedings.
20
DOJ observes that impeachment trials of officials other than the President are presided over by “the Vice
President or whichever Senator is presiding at that time,” rather than by the Chief Justice. DOJ Resp. at 16. This
constitutional quirk is irrelevant here since the instant petition concerns the possible impeachment of the President.
21
Although Representative Collins, like DOJ, supports denial of HJC’s application, he “agrees with [HJC]
that an impeachment inquiry . . . fall[s] under Federal Rule of Criminal Procedure 6(e)’s judicial proceeding
exception because” an impeachment inquiry is “preliminary to a trial in the U.S. Senate.” Collins Mem. at 1.
26
“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. (13 Otto) 168, 183 (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
27
(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 unrefuted statements made by Alexander Hamilton during the ratification debates.”),
aff’d, 506 U.S. 224 (1993).22 For instance, Hamilton described the appointment of officers—
which is an executive function—and impeachment, as powers given to the Senate “in a distinct
capacity” from all of the Senate’s other powers. THE FEDERALIST NO. 65, supra, at 396. By
citing those two powers in particular and separating them from all others bestowed on the Senate,
he thus conveyed that those powers were, unlike those that came before, not legislative.
Additionally, when Hamilton considered potential alternative “tribunal[s],” id. at 398, that might
be granted the power of trying impeachments, he considered the primary alternatives to be
22
Indeed, Hamilton’s discussion of the Senate’s impeachment power in Federalist Nos. 65 and 66, uses such
judicial terms repeatedly and consistently. Hamilton referred to the “court,” the “court of impeachments,” and the
“court for the trial of impeachments” a total of seventeen times. THE FEDERALIST NOS. 65–66, supra, at 396–407
(Alexander Hamilton). Moreover, when referring to impeachment, Hamilton also used the following additional
terms associated with the judicial nature of the proceeding: “jurisdiction” once; “offense(s)” or “offender” five
times; “prosecution” or “prosecutors” three times; “accused,” “accusers,” “accusation,” or “accusing” nine times;
“case(s)” five times; “decision,” “decide,” or “deciding” eight times; “innocence” or “innocent” three times; “guilt”
or “guilty” five times; “inquest,” “inquisitors,” or “inquiry” four times; “tribunal” twice; “judges” or “judging” ten
times; “sentence” or “sentenced,” including “sentence of the law,” five times; “party” once; “punishment” or
“punish” seven times; “conviction” once; “trial” or “try” four times, not counting instances of “courts for the trial of
impeachments”; “verdict(s)” twice; “liable” once; and “charges” once. Id.
28
assignment of the power directly to the Supreme Court alone, id., or assignment to the “Supreme
Court with the Senate,” id. at 399, underscoring the judicial nature of the impeachment-trial
power.
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 . . . .”).
29
Hamilton was not the only Founder who conceived of the impeachment power as
inherently judicial. Notably, James Madison shared Hamilton’s view. In Federalist No. 38,
Madison, like Hamilton, noted that a principle objection to the Constitution was “the trial of
impeachments by the Senate, . . . when this power so evidently belonged to the judiciary
department.” THE FEDERALIST NO. 38, supra, at 236 (James Madison). Then, in Federalist No.
47, Madison defended this mixing of powers. In the British system, Madison pointed out, “the
legislative, executive, and judiciary departments are by no means totally separate and distinct
from each other” because, inter alia, “[o]ne branch of the legislative department . . . is the sole
depositary of judicial power in cases of impeachment.” THE FEDERALIST NO. 47, supra, at 302
(James Madison) (spelling irregularity in original). Such mixing, he pointed out, occurred in the
states as well, such as in New Hampshire, where “[t]he Senate, which is a branch of the
legislative department, is also a judicial tribunal for the trial of impeachments,” and in
Massachusetts, where “the Senate, which is a part of the legislature, is a court of impeachment,”
notwithstanding a declaration in the state’s constitution “‘that the legislative department shall
never exercise the . . . judicial powers.’” Id. at 304–05 (citing also to the “court for the trial of
impeachments” in New York “consist[ing] of one branch of the legislature and the principal
members of the judiciary department,” id. at 305, and to the “court of impeachments” in
Delaware, “form[ed]” by “one branch of the [legislative department],” id. at 306)).
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
30
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 I makes clear that in this [impeachment] role, the
Senate acts as a court trying impeachable offenses and renders judgment . . . .”); id. at *50
(“Senate trials of impeachment are an exercise of judicial power . . . .”).
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,
31
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, 135 S. Ct. 1074, 1085 (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.23 As these dictionary definitions
demonstrate, at every turn the Constitution uses words that mark the judicial nature of the
Senate’s power to try impeachments.
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
23
The variation “high crime” similarly means “[a] crime that is very serious, though not necessarily a
felony,” Crime, BLACK’S, and “high misdemeanor” historically meant in English law “[a] crime that ranked just
below treason in seriousness,” Misdemeanor, BLACK’S.
32
U.S. (2 Dall.) 408 (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 (1917), the Court noted that
congressional contempt power can be “transformed into judicial authority” when a “committee
contemplat[es] impeachment.” Id. at 547.
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 sitting as triers in a trial of the impeachment of the President of the United States,” 145
Cong. Rec. S279 (statement of Sen. Harkin), “the objection . . . is well taken, that the Senate is
not simply a jury; it is a court in this case,” id. (statement of Chief Justice Rehnquist).
“Therefore,” Chief Justice Rehnquist continued, “counsel should refrain from referring to the
Senators as jurors.” Id. The views of the Senators participating in the last impeachment trial of a
sitting President confirm their understanding of their judicial role. See id. at S1584 (statement of
Sen. Leahy) (noting that when “Senate is the court,” “Senators are not merely serving as petit
jurors” but “have a greater role and a greater responsibility in this trial”); id. at S1599 (statement
of Sen. Stevens) (noting that “an impeachment trial is no ordinary proceeding” and that Senators
“sit as judge and jury—rulers on law and triers of fact”); id. at S1602 (statement of Sen.
Lieberman) (noting that impeachment “is unique in that it is a hybrid of the legislative and the
judicial, the political and the legal” (quoting Senate Rules and Precedents Applicable to
33
Impeachment Trials: Executive Session Hearing Before the S. Comm. on Rules and
Administration, 93rd Cong. 193 (1974) (statement of Sen. Mansfield)); id. at S1618 (statement of
Sen. Crapo) (“As each Senator took the oath to provide impartial justice, . . . [n]o longer was the
Senate a legislative body, it was a court of impeachment. A unique court, to be sure, not
identical to traditional civil and criminal courts, but a court nonetheless.”).
This further supports the conclusion that an impeachment trial constitutes “a judicial
proceeding” under Rule 6(e)(3)(E)(i).24
3. Historical Practice Before Enactment of Rule 6(e) Informs Interpretation of
that Rule
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 6(e) in 1946. In 1902, a House committee investigated allegations of
election fraud in St. Louis, Missouri, based on “a report of a grand jury which sat in St. Louis”
24
This analysis disposes of DOJ’s argument that an impeachment trial is not judicial in nature because
impeachment proceedings “are political.” DOJ Resp. at 16. While the House “has substantial discretion to define
and pursue charges of impeachment,” Mazars, 2019 WL 5089748, at *28 (Rao, J., dissenting), the Constitution
nevertheless “limits the scope of impeachable offenses,” id. at *50 (citing U.S. CONST. art. II, § 4); see id. at *32
(“[I]mpeachment addresses a public official’s wrongdoing—treason, bribery, and high crimes or misdemeanors—
while problems of general maladministration are left to the political process.”); see also 3 Lewis Deschler,
Deschler’s Precedents of the House of Representatives Ch. 14 App’x [hereinafter Deschler] (“The impeachment of
President Andrew Johnson . . . rested on allegations that he had exceeded the power of his office and had failed to
respect the prerogatives of Congress.”). Thus Hamilton, for instance, viewed an impeachment trial’s character as
judicial even while he viewed impeachment offenses as “of a nature which may with peculiar propriety be
denominated POLITICAL.” THE FEDERALIST NO. 65 (emphasis in original). Further, while Members of the U.S.
Senate are politically accountable, this accountability merely ensures that Senators properly exercise their judicial
power to try impeachments. See MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A
CONSTITUTIONAL AND HISTORICAL ANALYSIS 110 (1996) (“[M]embers of Congress seeking reelection have a
political incentive to avoid any abuse of the impeachment power. . . . [T]he cumbersome nature of the impeachment
process makes it difficult for a faction guided by base personal or partisan motives to impeach and remove someone
from office.”).
34
that a city police board in the district apparently had assisted with the election fraud. 2 Asher C.
Hinds, Hinds’ Precedents of the House of Representatives Ch. 40 § 1123 [hereinafter Hinds].25
Twenty years later, in 1924, the Senate launched an investigation of a Senator who had been
indicted by a grand jury. 6 Cannon Ch. 188 § 399. Seeking to ensure that the congressional
investigation had access to all information relevant to the allegations, the chairman of the
investigating committee “sen[t] a telegram to the presiding judge . . . asking for the minutes of
the grand jury proceedings, the names of the witnesses, and the documentary evidence which had
gone before the grand jury,” and subsequently received what he requested. Id. (indicating that
“reply to the telegram” helped the committee compile its list of witnesses, and that “[n]o
evidence [was] left out of the [Senate committee] hearings”).
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
25
Even earlier, in 1811, the House received a “copy of a presentment against [territorial judge] Harry
Toulmin, . . . made by the grand jury of Baldwin County, specifying charges against the said judge, which” “set in
motion” a House “inquiry” “looking to the impeachment” of Judge Toulmin. 3 Hinds Ch. 79 § 2488. Also, in 1921
a Senate committee confronted another allegation of election fraud, and because the committee’s investigation post-
dated a grand jury inquiry, the Senate committee had access to “everything before the grand jury which was deemed
at all relevant,” because the material had been introduced at trial to HJC. 6 Clarence Cannon, Cannon’s Precedents
of the House of Representatives Ch. 159 § 74 [hereinafter Cannon]. In these instances, the grand jury information
was presumably no longer secret, but Chief Judge Sirica nevertheless deemed the 1811 Judge Toulmin “precedent”
to be “persuasive” when he ordered disclosure of the Watergate grand jury report. See In re Report &
Recommendation of June 6, 1972 Grand Jury (In re 1972 Grand Jury Report), 370 F. Supp. 1219, 1230 (D.D.C.
1974) (Sirica, C.J.) (“If indeed [Rule 6(e)] merely codifies existing practice, there is convincing precedent to
demonstrate that common-law practice permits the disclosure here contemplated.”).
35
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 (noting that
Rule 6(e) “codifie[d] the traditional rule of grand jury secrecy”); Haldeman, 501 F.2d at 716(MacKinnon, J, concurring in part and dissenting in part) (observing that Rule 6(e) “is a
codification of long-standing decisions that hold to the ‘indispensable secrecy of grand jury
proceedings . . . except where there is a compelling necessity’”) (omission in original) (quoting
United States v. Procter & Gamble Co., 356 U.S. 677, 683 (1958))).26 The practice, albeit fairly
rare, of sharing grand jury information with Congress at the time of Rule 6(e)’s enactment lends
support to the conclusion that this rule, particularly the “judicial proceedings” exception, is
correctly construed to include impeachment trials.
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
26
“In the absence of a clear legislative mandate, the Advisory Committee Notes [to the Federal Rules of
Criminal Procedure] provide a reliable source of insight into the meaning of a rule, especially when, as here, the rule
was enacted precisely as the Advisory Committee proposed.” United States v. Vonn, 535 U.S. 55, 64 n.6 (2002).
36
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 (1929) (citing U.S. CONST. art. I, § 5, cl. 1).
4. Binding D.C. Circuit Precedent Forecloses Any Conclusion Other Than That
an Impeachment Trial is a “Judicial Proceeding”
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
37
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 of Rule 6(e)? See id. at 1227. Chief Judge Sirica answered,
emphatically, yes. “[I]t should not be forgotten,” he explained, “that we deal in a matter of the
most critical moment to the Nation, an impeachment investigation involving the President of the
United States.” Id. at 1230. “Certainly Rule 6(e) [could not] be said to mandate” the
withholding of such a report from HJC. Id.
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
38
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).27 In response, the McKeever
27
DOJ relies on a footnote from a prior decision of this Court, see DOJ Resp. at 14–15 (quoting In re
Application to Unseal Dockets Related to the Independent Counsel’s 1998 Investigation of President Clinton, 308 F.
39majority acknowledged “ambigu[ity]” in Haldeman’s reasoning, but the majority opted to
“read[] the case to cohere, rather than conflict, with the Supreme Court and D.C. Circuit
precedents” that formed the basis for the McKeever holding. Id. at 847 n.3 (majority opinion).
Accordingly, the Circuit “read Haldeman as did Judge MacKinnon in his separate opinion
concurring in part, as fitting within the Rule 6 exception for ‘judicial proceedings.’” Id.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).28
Supp. 3d at 318 n.4), for a plain reading of the term “judicial proceeding” as precluding application to a
congressional proceeding, but the cited decision read Haldeman, like Judge Srinivasan, as “allow[ing] for district
court disclosures beyond Rule 6(e)’s exceptions,” Mckeever, 920 F.3d at 853 (Srinivasan, J., dissenting). The
Mckeever panel majority read Haldeman differently to include impeachment proceedings within the “judicial
proceeding” exception, and that reading now controls.
28
DOJ describes as “telling[]” that “rulemakers did not include the possibility that a congressional proceeding
could constitute a judicial proceeding, even though” the 1983 amendments to Rule 6(e)(3)(E)(i) “post-dated
40
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 (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 standard of review being the extraordinary writ
of mandamus seven times in the opinion . . . .”). DOJ misreads Haldeman. When discussing
Rule 6(e), the mandamus standard is not mentioned, although this standard comes up repeatedly
in other parts of the opinion. Instead, after explaining that Chief Judge Sirica had “dealt at
length” with whether an impeachment trial is a judicial proceeding, the Haldeman Court
expressed “general agreement with his handling of these matters.” 501 F.2d at 715. This
“agreement” was so strong, in fact, that the Haldeman majority felt “no necessity to expand
[Chief Judge Sirica’s] discussion,” id., “thereby subscrib[ing] to Chief Judge Sirica’s rationale
for his disclosure order,” McKeever, 920 F.3d at 854 (Srinivasan, J., dissenting) (describing
Haldeman as having “ratified” Chief Judge Sirica’s decision).29 Notably, despite the affirming
Haldeman.” DOJ Resp. at 18 n.12. If any inference can be gleaned from leaving the judicial proceeding exception
unchanged, however, the correct inference is that Congress “adopted the earlier judicial construction of th[e]
phrase,” Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc., 139 S. Ct. 628, 633–34 (2019), namely: that disclosure
of grand jury material to Congress for an impeachment investigation was already authorized by this exception.
29
DOJ characterizes the Haldeman majority’s “general agreement” with Chief Judge Sirica’s reasoning as
indicating merely that the majority believed any error in Chief Judge Sirica’s analysis did not merit reversal in light
of the deferential standard of review, DOJ Resp. at 21 (internal quotation marks omitted) (quoting Haldeman, 501
F.2d at 715), but appellate courts are not coy about acknowledging when decisions turn on standards of review, see,
e.g., Pallet Cos. v. NLRB, 634 Fed. App’x 800, 801 (D.C. Cir. 2015) (per curiam) (“Particularly in light of our
deferential standard of review, we have no basis to disturb that credibility judgment.”); Judgment, Giron v.
McFadden, 442 Fed. App’x 574, 575 (D.C. Cir. 2011) (“Particularly in light of the deferential standard of review,
41
language in Haldeman, DOJ has gone so far as to say here that Rule 6(e) did not in fact authorize
the disclosure of the grand jury’s Watergate Roadmap, which Chief Judge Sirica ordered
disclosed to HJC during the impeachment investigation of President Nixon. See Hearing Tr. at
89:21–90:2.
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 (2000)
(quoting id. at 536 (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.30
we hold that the District Court did not abuse its discretion . . . .”), rather than straightforward approval of the
decision below. The Haldeman Court did the latter.
30
When queried about reconciling DOJ’s current position with its historical support of providing grand jury
materials to Congress for use in impeachment inquiries, DOJ responded that its position has “evolved.” Hr’g Tr. at
85:24. No matter how glibly presented, however, an “evolved” legal position may be estopped. “[W]here a party
assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary position . . . .” New Hampshire v. Maine, 532 U.S.
742, 749 (2001) (alteration in original) (internal quotation mark omitted) (quoting Davis v. Wakelee, 156 U.S. 680,
689 (1895)). This rule also applies when a party, including a governmental entity, makes “a claim in a legal
proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” Id. at 749 (internal
quotation mark omitted), see also id. at 755–56 (applying estoppel to a state government). Here, DOJ has changed
42
Most troubling, DOJ’s proposed reading of “judicial proceeding” raises constitutional
concerns. DOJ policy is that a sitting President cannot be indicted, OLC Op., which policy
prompted the Special Counsel to abstain from “mak[ing] a traditional prosecutorial judgment” or
otherwise “draw[ing] ultimate conclusions about the President’s conduct.” Mueller Report at II-
8. This leaves the House as the only federal body that can act on allegations of presidential
misconduct. Yet, under DOJ’s reading of Rule 6(e), the Executive Branch would be empowered
to wall off any evidence of presidential misconduct from the House by placing that evidence
before a grand jury. Rule 6(e) must not be read to impede the House from exercising its “sole
Power of Impeachment.” U.S. CONST. art. I, § 2, cl. 5; cf. Trump v. Comm. on Oversight and
Reform of U.S. House of Representatives, 380 F. Supp. 3d 76, 95 (D.D.C. 2019) (“It is simply
not fathomable that a Constitution that grants Congress the power to remove a President for
reasons including criminal behavior would deny Congress the power to investigate him for
unlawful conduct . . . .”), aff’d sub nom. Trump v. Mazars USA, LLP, No. 19-5142, 2019 WL
5089748 (D.C. Cir. 2019).
* * *
its longstanding position regarding whether impeachment trials are “judicial proceedings” and whether Haldeman so
held. In Haldeman itself, the special prosecutor argued for disclosure of the grand jury materials and “represented
that this disclosure of the grand jury material to the House Judiciary Committee and eventually possibly to the
House and Senate [was] being made ‘preliminarily to (and) in connection with a judicial proceeding.’” Haldeman,
501 F.2d at 717 (MacKinnon, J. concurring in part and dissenting in part) (quoting FED. R. CRIM. P. 6(e)). Similarly,
when grand jury material was released to HJC during the impeachments of Judges Hastings and Porteous, DOJ
raised no objections. See Hastings, 833 F.2d at 1441–42 (“[T]he Department of Justice has stated that it has ‘no
objection’ to this disclosure to the Committee.”); Order, In Re: Grand Jury Investigation of U.S. Dist. Judge G.
Thomas Porteous, Jr., No. 2:09-mc-04346-CVSG, at 2 (“DOJ does not oppose the request.”). Most importantly, in
McKeever itself DOJ successfully argued—just last year—that the D.C. Circuit has “treated Haldeman as standing
only for the proposition that an impeachment proceeding may qualify as a ‘judicial proceeding’ for purposes of Rule
6(e),” see Brief for Appellee at 37, McKeever, 920 F.3d 842 (No. 17-1549), and the D.C. Circuit agreed, see
McKeever, 920 F.3d at 847 n.3. DOJ’s position has had a speedy evolution indeed. Nevertheless, since DOJ’s
reading of Haldeman and McKeever fails on the merits, further consideration of whether DOJ’s new position is
estopped is unnecessary.
43
As the foregoing analysis shows, a Senate impeachment trial is a “judicial proceeding”
within the meaning of Rule 6(e). Quod erat demonstrandum.
B. HJC’s Consideration of Articles of Impeachment is “Preliminarily
To” an Impeachment Trial
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. 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 must be engaged in an
investigation that is “related fairly directly to” an “anticipated” impeachment trial. Id. As
explained in more detail below, the “primary purpose,” id., of HJC’s investigation is to
determine whether to recommend articles of impeachment and HJC therefore satisfies this
prerequisite for disclosure.
1. Governing Legal Principles Demonstrate That House Proceedings Can be
“Preliminarily To” a Senate Impeachment Trial
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. By contrast, the Court discussed a second situation where
44
“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. 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 n.6. In so doing, the Court acknowledged, in practical terms, how
investigations evolve to reach the point of contemplating litigation, stating:
[a]s a general matter, many an investigation, begun to determine
whether there has been a violation of law, reaches a tentative
affirmative conclusion on that question; at that point, the focus of
the investigation commonly shifts to ascertaining the scope and
details of the violation and building a case in support of any
necessary enforcement action.
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.
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
45
the material is preliminary to or in connection with a judicial proceeding.” In re Sealed Motion,
880 F.2d at 1379 n.15.31 As suggested by Baggot’s footnote 6, the D.C. Circuit has further
indicated that an investigation can be “preliminarily to” a judicial proceeding even though no
litigation is actually pending but may only be “possible.” In re Grand Jury, 490 F.3d at 986(holding that grand jury investigation satisfies the “preliminarily to” test as “preliminary to a
possible criminal trial”).
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
31
At least two other circuits have reached the same conclusion. See Patton v. C.I.R., 799 F.2d 166, 172 (5th
Cir. 1986) (“In Baggot, the Supreme Court observed that Rule [6(e)(3)(E)(i)] ‘contemplates only uses related fairly
directly to some identifiable litigation, pending or anticipated,’ as measured by the ‘primary purpose of the
disclosure.’” (quoting Baggot, 463 U.S. at 480)); In re Barker, 741 F.2d 250, 254 (9th Cir. 1984) (“Under Baggot,
the proper inquiry is whether the primary purpose of the disclosure is to assist in the preparation or conduct of
judicial proceedings.”).
46
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.”).32
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.
2. HJC’s Primary Purpose is to Determine Whether to Recommend Articles of
Impeachment
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.
a. DOJ’s Proposed “Preliminarily To” Test is Contrary to Baggot
Despite the clarity with which the Supreme Court “decline[d],” Baggot, 463 U.S. at 482
n.6, 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
32
The grand jury analogy is not perfect. See 145 Cong. Rec. S1586 (1999) (statement of Sen. Leahy) (noting
that the analogy between the House and a grand jury is “loose” (quoting Background and History of Impeachment:
Hearing Before the Subcomm. On the Constitution of the HJC, 105th Cong., XX S. Doc. 106-3 at 228 (statement of
Laurence H. Tribe) (1998)). When the House decides whether to impeach, it functions as more than a “mere
‘accuser.’” Id. “The House’s constitutional responsibility for charging the President should not be misinterpreted to
justify applying only a grand jury’s ‘probable cause’ standard of proof.” Id. at S1587. Rather, “House Members
who vote to impeach should also be convinced th[e] President has so abused the public trust and so threatens the
public that he should be removed.” Id.
47
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), 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)).
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. 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, or
“possible,” In re Grand Jury, 490 F.3d at 986; see Baggot, 463 U.S. at 482–83 (“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
48
impeachment is one of many possible outcomes.” DOJ Resp. at 24.33 Even if DOJ were correct
that only some congressional committee investigations are “preliminarily to” an impeachment
trial, see In re Uranium Grand Jury, 1979 WL 1661, at *7 (determining that Rule 6(e) is not
satisfied where a House committee “makes a somewhat vague assertion that one of the reasons it
needs to examine the transcripts is that it might result in its recommendation to the House
Judiciary Committee that impeachment proceedings be initiated”), DOJ is wrong in this instance,
as detailed infra in Part III.B.2.C.
b. No House “Impeachment Inquiry” Resolution is Required
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.
33
Some of DOJ’s arguments regarding whether HJC meets the “preliminarily to” test have been mooted due
to developments in the possible impeachment of President Trump since the pending application was filed. DOJ, for
instance, initially argued that statements by the Speaker and the House Majority Leader showed that “the House
Democratic caucus was ‘not even close’ to an ‘impeachment inquiry.’” DOJ Resp. at 27 (quoting Rep. Nancy Pelosi
(D-CA) Continues Resisting Impeachment Inquiry, CNN (June 11, 2019), http://transcripts.cnn.com/TRANSCRI
PTS/1906/11/cnr.04html). That may have been true in June, but not now, after the Speaker herself announced in
September that the full House is “moving forward with an official impeachment inquiry.” Pelosi Remarks
Announcing Impeachment Inquiry (Sept. 24, 2019), https://perma.cc/6EQM-34PT [hereinafter Pelosi Tr.].
49
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.34
Indisputably, the House has initiated impeachment inquiries of federal judges without a
House resolution “authorizing” the inquiry. See, e.g., H.R. Rep. No. 101-36, at 13–16 (1988)
(describing proceedings with respect to Judge Walter Nixon leading up to HJC’s
recommendation of articles of impeachment, with no mention of an authorizing resolution); H.
R. Res. 320, 100th Cong. (as passed by the House Dec. 2, 1987) (authorizing taking of affidavits
and depositions during the impeachment investigation of Judge Hastings, without any formal
House resolution for an “impeachment inquiry”); H.R. Rep. No. 99-688, at 3–7 (1986)
(describing proceedings with respect to Judge Harry Claiborne leading up to HJC’s
34
DOJ and Representative Collins offer only one argument for distinguishing presidential and judicial
impeachments: that the House “has delegated initial investigatory authority for impeachment to the U.S. Judicial
Conference through the passage of the Judicial Conduct and Disability Act of 1980.” Collins Mem. at 10 n.12
(citing 28 U.S.C. § 355(b)); see also Hr’g Tr. at 83:21–84:23 (DOJ) (raising similar argument). Yet, during the
investigations of Judge Porteous and Judge Hastings, HJC did not rely on the Judicial Conference to furnish relevant
grand jury material but instead petitioned for and received relevant grand jury material directly from the courts
supervising the grand jury investigations of the judges at issue. See Hastings, 833 F.2d 1438; Order, In Re: Grand
Jury Investigation of U.S. Dist. Judge G. Thomas Porteous, Jr., No. 2:09-mc-04346-CVSG. Moreover, the
impeachment investigation of Justice Douglas, which went forward without a House Resolution, occurred in 1970,
before the Judicial Conduct and Disability Act of 1980 was adopted. See Final Report on Associate Justice William
O. Douglas, Special Subcomm. on H.R. Res. 920 of the House Comm. on the Judiciary, 91st Cong. (1970).
50
recommendation of articles of impeachment, with no mention of an authorizing resolution); 3
Deschler Ch. 14 § 5 (“In the case of Justice Douglas, the Committee on the Judiciary authorized
a special subcommittee to investigate the charges, without the adoption by the House of a
resolution specifically authorizing an investigation.”). Furthermore, federal judges have been
impeached by the House without a House resolution “authorizing” an inquiry. See H.R. Res. 87,
101st Cong. (1989) (impeaching Judge Nixon); H.R. Res. 499 100th Cong. (1988) (impeaching
Judge Hastings); H.R. Res. 461, 99th Cong. (1986) (impeaching Judge Claiborne). In the course
of an impeachment proceeding against a federal judge, the House has also obtained grand jury
material to assist in an impeachment inquiry that was not “authorized” by a specific House
impeachment resolution. See Hastings, 833 F.2d at 1439 (releasing Hastings grand jury
information to HJC).
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”).35 In the case of
President Clinton, the D.C. Circuit authorized the disclosure of grand jury materials to Congress
35
DOJ and Representative Collins both agree that the events leading up to President Nixon’s resignation are
relevant historical precedent for the purpose of the current inquiry, even though President Nixon left office before he
could be impeached. See Hr’g Tr. at 71:13–19 (DOJ); Collins Mem. at 9–10.
51
on July 7, 1998, see HJC App., Ex. Q, Order, In re Madison Guaranty Savings & Loan Assoc.,
Div. No. 94-1 (D.C. Cir. Spec. Div. July 7, 1998) (per curiam), ECF No. 1-18, even though no
impeachment resolution had yet been adopted and was not adopted by the House until four
months later, see H. R. Res. 525, 105th Cong. (1998) (authorizing, on October 8, 1998, HJC to
“investigate fully and completely whether sufficient grounds exist for the House of
Representatives to exercise its constitutional power to impeach” President Clinton).36
While close scrutiny of the historical record undercuts that justification for the “House
resolution” test proposed by Representative Collins, the more significant flaw with this proposal
is as follows: while this test may address political legitimacy concerns, which are best resolved
in the political arena, no governing law requires this test—not the Constitution, not House Rules,
and not Rule 6(e), and so imposing this test would be an impermissible intrusion on the House’s
constitutional authority both to “determine the rules of its proceedings” under the Rulemaking
Clause, U.S. CONST., Art. I, § 5, cl. 2, and to exercise “the sole power of Impeachment” under
the Impeachment Clause, id. § 2, cl. 5. This Court “ha[s] no authority to impose,” by judicial
order, a particular structure on House proceedings. Mazars, 2019 WL 5089748, at *24. In
Mazars, for example, the D.C. Circuit rejected the position that enforcement of a House
Oversight and Reform Committee subpoena of a third-party’s records related to President Trump
and his business associates was inappropriate until the “full House” granted the Committee
“express authority to subpoena the President for his personal financial records.” Id. at *24
(internal quotation marks omitted). Citing the Constitution’s Rulemaking Clause, the D.C.
36
DOJ dismisses the example of the House’s impeachment of President Clinton, contending that the then-
operative Independent Counsel Act provided independent authorization for disclosure of grand jury material to
Congress. DOJ Resp. at 22–23. Putting aside whether DOJ correctly reads the now-lapsed independent counsel
statute, this contention only confirms that full House impeachment resolutions have not been a necessary predicate
for HJC to commence an impeachment investigation and obtain access to grand jury material to assist in that
investigation.
52
Circuit explained that “unless and until Congress adopts a rule that offends the Constitution, the
courts get no vote in how each chamber chooses to run its internal affairs.” Id.; see also Barker
v. Conroy, 921 F.3d 1118, 1130 (D.C. Cir. 2019) (noting that “‘making the Rules . . . [is] a power
that the Rulemaking Clause reserves to each House alone’” (quoting United States v.
Rostenkowski, 59 F.3d 1291, 1306–07 (D.C. Cir. 1995)). This Court likewise lacks authority to
require the House to pass a resolution tasking a committee with conducting an 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 *18.37 In any event, the House has
37
The distinction between Congress’ legislative and impeachment authority, even if otherwise sound, has
questionable relevance to the Rule 6(e) analysis. The “preliminarily to” requirement depends on the “primary
purpose” disclosure would serve, not the source of authority Congress acts under.
53
sufficiently delegated to HJC the authority to conduct an impeachment inquiry in at least two
ways. Jefferson’s Manual—which under House Rule XXI “‘govern[s] the House in all cases to
which [it is] applicable and in which [it is] not inconsistent with the Rules and orders of the
House’”—provides that impeachment can be “set[] . . . in motion” by “a resolution introduced by
a Member and referred to a committee” as well as “facts developed and reported by an
investigating committee of the House.” Jefferson’s Manual § 603.38 Additionally, the full
House has authorized, in Resolution 430, HJC to bring this suit and simultaneously granted HJC
“any and all necessary authority under Article I of the Constitution.” H.R. Res. 430, 116th
Cong. (as passed by House June 11, 2019) (emphases added).39
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.40 Even DOJ does not dispute that statements made by the House Speaker may be
38
Jefferson’s Manual is one of the “fundamental source material[s] for parliamentary procedure used in the
House of Representatives.” Thomas J. Wickham, Constitution, Jefferson’s Manual, and Rules of the House
Representatives of the United States One Hundred Fifteenth Congress at v (2017).
39
Challenge to a specific committee action on grounds that HJC’s authority was in doubt would be
unreviewable. “[U]nless and until Congress adopts a rule that offends the Constitution,” judicial review of House
rules is inappropriate. Mazars, 2019 WL 5089748, at *24. Here, neither DOJ nor Representative Collins complains
that HJC’s actions or authorizing House rules suffer from a “constitutional infirmity.” Vander Jagt v. O’Neill, 699
F.2d 1166, 1173 (D.C. Cir. 1983). That distinguishes this case from Tobin v. United States, 306 F.2d 270 (D.C. Cir.
1962), which Representative Collins heavily relies on; there the House resolution at issue raised “serious and
difficult” constitutional issues. Id. at 275; see also Mazars, 2019 WL 5089748, at *24 (similarly distinguishing
Tobin).
40
Citing Speaker Pelosi’s September 2019 statement, Representative Collins also argues that HJC’s
investigation is not “preliminarily to” a Senate impeachment trial because the “impeachment inquiry” announced by
the Speaker will “be handled by three other committees and focus ‘narrowly on the Ukraine matter’” rather than on
allegations in the Mueller Report. Collins Mem. at 14 (quoting Rachael Blade and Mike DeBonis, Democrats Count
on Schiff to Deliver Focused Impeachment Inquiry of Trump, WASH. POST (Sept. 29, 2019), https://www.washington
post.com/politics/pelosi-turns-to-schiff-to-lead-house-democrats-impeachment-inquiry-of-trump/2019/09/
28/ed6c4608-e149-11e9-8dc8-498eabc129a0_story.html). This argument is misguided, first, because Speaker
Pelosi made clear that “six [c]ommittees”—including HJC—would “proceed with their investigations under that
umbrella of impeachment inquiry,” Pelosi Tr., and thus HJC plainly remains engaged. Second, the current focus on
President Trump’s interactions with the foreign leader of Ukraine is pertinent, not to the “preliminarily to”
54
probative in evaluating the “primary purpose” of HJC inquiries, as DOJ too has relied on the
Speaker’s statements in its arguments about satisfaction of the “preliminarily to” requirement.
See DOJ Resp. at 3, 26–27.
c. The Record of House and HJC Impeachment Activities Here Meets the
“Preliminarily To” Test
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 satisfied the actual inquiry: Baggot’s “primary purpose” test. As HJC explains,
the purpose of HJC’s investigation and the requested disclosure is “to determine whether to
recommend articles of impeachment,” HJC App. at 3, and the record evidence supports that
claim. Determining whether to recommend articles of impeachment may not have been the
primary purpose of HJC’s investigation initially, but that is of no moment. “Congress’s decision
whether, and if so how,” to act “will necessarily depend on what information it discovers in the
course of an investigation, and its preferred path forward may shift as members educate
themselves on the relevant facts and circumstances.” Mazars, 2019 WL 5089748, at *13. While
HJC is “pursuing a legitimate legislative objective [it] may . . . choose to move from legislative
investigation to impeachment,” id. at *18, and that is precisely what occurred here, as a review of
the record evidence in chronological order demonstrates.
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
requirement, but to the issue of whether HJC has shown a “particularized need” for the redacted grand jury materials
in the Mueller Report. As to the “preliminarily to” requirement, the Ukrainian developments simply underscore that
the investigations currently proceeding in the House may lead to a Senate impeachment trial.
55
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
56
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 (July 11, 2019), ECF No. 1-2. At a hearing held the next day, Chairman Nadler further stated
that HJC’s “responsibility” was “to determine whether to recommend articles of impeachment
against the President,” noting that “articles of impeachment are under consideration as part of the
Committee’s investigation.” HJC App., Ex. T, Lessons from the Mueller Report, Part III:
“Constitutional Processes for Addressing Presidential Misconduct”: Hearing Before the H.
Comm. on the Judiciary at 4 (July 12, 2019), ECF No. 1-21 (capitalization altered). On
September 12, 2019, HJC adopted a resolution confirming that the purpose of its investigation is
“to determine whether to recommend articles of impeachment with respect to President Donald J.
Trump.” DOJ Resp., Ex. 11, Comm. on the Judiciary, Resolution for Investigative Procedures at
4 (Sept. 12, 2019), ECF No. 20-11.
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
57
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.
3. Requiring More Than the Current Showing by HJC, as DOJ Demands,
Would Improperly Intrude on Article I Powers Granted to House of
Representatives
DOJ urges this Court to second-guess a co-equal branch of government and find that the
steps taken by the House fall short of showing a primary purpose of undertaking an impeachment
inquiry that would meet the “preliminarily to” requirement in Rule 6(e)(3)(E)(i). In so doing,
58
DOJ again invites an impermissible intrusion on the House’s constitutional authority under the
Rulemaking and Impeachment Clauses. These Article I grants of exclusive authority require a
degree of deference to the House’s position that the House and HJC are currently engaged in an
investigation with the primary purpose of assessing whether to adopt articles of impeachment.
See Vander Jagt, 699 F.2d at 1173 (concluding that the Rulemaking Clause “means that neither
we nor the Executive Branch may tell Congress what rules it must adopt”); Mazars, 2019 WL
5089748, at *24 (“[U]nless and until Congress adopts a rule that offends the Constitution, the
courts get no vote in how each chamber chooses to run its internal affairs.”); Nixon v. United
States, 506 U.S. 224, 238 (1993) (concluding that judicial review of Senate impeachment trial
procedures would be inconsistent with the text and structure of the Constitution).
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).41
41
Although neither the Supreme Court nor the D.C. Circuit has considered the justiciability of, or the degree
of deference due in, cases implicating the House’s “sole power of Impeachment,” U.S. CONST., Art. I, § 2, cl. 5,
verifying that the factual record supports HJC’s assertion about its “primary purpose” does not require direct judicial
review of any actions by the House taken pursuant to the impeachment power.
59
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 (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 constitutes a
federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain
a conviction”). Indeed, even a lawyer in a civil proceeding must “certif[y] that to the best of the
[lawyer’s] knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances,” the “factual contentions” presented to the court “have evidentiary support.”
FED. R. CIV. P. 11(b).
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
60
access to the pertinent information before making an impeachment recommendation to the full
House.
4. DOJ’s Remaining Objections are Unpersuasive
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 (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
61
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 this case, where HJC is months into its
investigation and both the Speaker of the House and HJC have confirmed that the current
investigation’s purpose is to determine whether to recommend articles of impeachment against
President Trump. Besides, this “slippery slope” may be less precipitous than DOJ suggests, for a
congressional committee seeking to obtain grand jury information based solely on a single
Member’s introduction of articles of impeachment would have an uphill battle demonstrating a
“particularized need” for the materials.
* * *
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.
C. HJC Has a “Particularized Need” for the Requested Materials
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
62
480; 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.42
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 (citing Douglas Oil, 441 U.S. at 222). 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.
Ultimately, determinations of “particularized need” are committed to the “considered
discretion of the district court.” Douglas Oil, 441 U.S. at 228; see also In re Sealed Case, 801
F.2d at 1381 (recognizing the “substantial discretion of the district court”). That discretion “to
42
To repeat, the topics in the third category of requested grand jury materials are: (A) “President Trump’s
knowledge of efforts by Russia to interfere in the 2016 U.S. Presidential election;” (B) his “knowledge of any direct
or indirect links or contacts between individuals associated with his Presidential campaign and Russia, including
with respect to Russia’s election interference efforts;” (C) his “knowledge of any potential criminal acts by him or
any members of his administration, his campaign, his personal associates, or anyone associated with his
administration or campaign;” and (D) “actions taken by McGahn during the campaign, the transition, or McGahn’s
period of service as White House Counsel.” HJC App. at 25. Material is related directly to President Trump’s
knowledge, HJC says, if it reflects “what witnesses saw or heard President Trump do.” Hr’g Tr. at 7:5–7:6.
63
determine the proper response to requests for disclosure,” Douglas Oil, 441 U.S. at 228, extends
to structuring the “time,” “manner,” and “other conditions” of any release of material, FED. R.
CRIM. P. 6(e)(3)(E); see also Douglas Oil, 441 U.S. at 223 (acknowledging the possibility of
“protective limitations” on the release of the material). HJC has proposed that the Court use this
authority to “direct a focused and staged disclosure,” starting with categories one and two of the
requested grand jury information and, following HJC’s review of that material, moving to
category three. HJC Reply at 25; see also Hr’g Tr. at 35:1–35:11.
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.
1. Disclosure is Necessary to Avoid Possible Injustice
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
64
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 1230.43
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 Jury Report, 370 F. Supp. at 1230. Features of the House’s
investigation and of the Mueller Report make HJC’s need for the grand jury materials referenced
and cited in the Report especially particularized and compelling.
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.
43
At the time, DOJ similarly recognized that “[t]he ‘need’ for the House to be able to make its profoundly
important judgment on the basis of all available information is as compelling as any that could be conceived.” HJC
App., Ex. P, Mem. for the U.S. on behalf of the Grand Jury, In re 1972 Grand Jury Report, 370 F. Supp. 1219 (Mar.
5, 1974), ECF No. 1-17. DOJ now attempts to distinguish In re 1972 Grand Jury Report on the ground that the
grand jury itself initiated the request to disclose the Watergate Roadmap to Congress, DOJ Resp. at 35, but Rule 6(e)
does not give different treatment to disclosures by grand jurors, see FED. R. CRIM. P. 6(e)(2)(B)(i), and so,
unsurprisingly, the grand jury’s involvement featured not at all in the relevant portions of Chief Judge Sirica’s
analysis, see In re 1972 Grand Jury Report, 370 F. Supp. at 1229–31.
65
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.44 These witnesses include Donald Trump, Jr.,
Carter Page, Erik Prince, Steve Bannon, and Corey Lewandowski.45 Of concern is that another
witness who spoke to both the Special Counsel and to Congress, Michael Cohen, has already
been convicted of making false statements to Congress, Mueller Report at I-195–96, and two
other individuals have been convicted of making false statements to the FBI in connection with
the Special Counsel’s investigation, see id. at I-192 (Papadopoulos); id. at I-194 (Flynn). The
record thus suggests that the grand jury material referenced or cited in the Mueller Report may
be helpful in shedding light on inconsistencies or even falsities in the testimony of witnesses
called in the House’s impeachment inquiry. See HJC App. at 37 (seeking the materials “to
44
In particular, the activities of the House Permanent Select Committee on Intelligence (“HPSCI”) are
relevant here because HJC’s protocols for handling the grand jury information, discussed infra, state that the
information will be shared with Members of HPSCI. See HJC App., Ex. X, Jerrold Nadler, Chairman, HJC, [HJC]
Procedures for Handling Grand Jury Information (“GJ Handling Protocols”) ¶ 11, ECF No. 1-25. With HJC, HPSCI
is one of the six committees conducting the impeachment inquiry. See Pelosi Tr.
45
See DOJ Resp. at 34 & n.23 (noting testimony by Trump Jr., Page, Bannon, and Prince and citing Minority
Views, HPSCI Report, https://intelligence.house.gov/uploadedfiles/20180411_-_final_-
_hpsci_minority_views_on_majority_report.pdf); Thursday: House Judiciary to Consider Procedures Regarding
Whether to Recommend Impeachment, COMM. ON THE JUDICIARY (Sept. 9, 2019),
https://judiciary.house.gov/news/press-releases/thursday-house-judiciary-consider-procedures-regarding-whether-
recommend (Lewandowski).
66
refresh or challenge th[e] testimony” of witnesses before Congress and “to corroborate [witness]
veracity”); see also Hr’g Tr. at 40:5–41:17 (HJC) (confirming that the grand jury material would
be used to impeach or corroborate witnesses).46 Disclosure is thus necessary here to prevent
witnesses from misleading the House during its investigative factfinding. See supra Part III.B.3
(discussing the House’s factfinding role). As DOJ acknowledges, disclosure of grand jury
information “when necessary to avoid misleading a trier of fact” is a paradigmatic showing of
“particularized need.” DOJ Resp. at 18–19 (recognizing that requests under the “judicial
proceedings exception typically arose” in this situation and quoting Douglas Oil); Douglas Oil,
441 U.S. at 222 n.12 (“The typical showing of particularized need arises when a litigant seeks to
use ‘the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test
his credibility and the like.’” (quoting Procter & Gamble Co., 356 U.S. at 683)).
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”).47 Given that the Special Counsel stopped short of a “traditional prosecutorial
judgment” or any “ultimate conclusions about the President’s conduct,” Mueller Report at II-8,
in part to avoid “preempt[ing] constitutional processes for addressing presidential misconduct,”
id. at II-1; see also id. at 2 (“[W]hile this report does not conclude that the President committed a
crime, it also does not exonerate him.”), “the House alone can hold the President accountable for
the conduct described,” HJC Reply at 19. HJC cannot fairly and diligently carry out this
responsibility without the grand jury material referenced and cited in the Mueller Report. Put
46
In identifying this need, HJC’s application focused on the example of Don McGahn, see HJC App. at 37,
but DOJ has now confirmed that McGahn did not testify before the grand jury, see Revised ADAG Decl. ¶ 4.
47
As HJC confirmed at the hearing, the recent revelations related to Ukraine have not displaced HJC’s focus
on investigating the conduct described in the Mueller Report. See Hr’g Tr. at 30:25–32:22.
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another way, HJC requires the grand jury material to evaluate the bases for the conclusions
reached by the Special Counsel.
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 use of, or decisions not to use,
the grand jury. Those insights may be essential to HJC’s decisions about witnesses who should
be questioned and about investigatory routes left unpursued by the Special Counsel that should
be pursued by HJC prior to a final determination about impeachment.
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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
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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 smack
of farce. The reality is that DOJ and the White House have been openly stonewalling the
House’s efforts to get information by subpoena and by agreement, and the White House has
flatly stated that the Administration will not cooperate with congressional requests for
information. See Letter from Pat A. Cipollone, Counsel to the President, to Representative
Nancy Pelosi, Speaker of the House, et al. (Oct. 8, 2019) at 2.
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
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Second Supp. at 4, ECF No. 41.48 Although DOJ at first “anticipate[d] making the remaining
FBI-302s available,” DOJ First Supp. at 3, DOJ now says it “may need to amend the . . .
agreement” because of a letter the White House sent to congressional leadership on October 8,
see DOJ Second Supp., Second Decl. of ADAG Bradley Weinsheimer (“Second ADAG Decl.”)
¶ 6, stating that “President Trump and his Administration reject [the House’s] baseless,
unconstitutional efforts to overturn the democratic process” and “cannot participate in [the
House’s] partisan and unconstitutional inquiry,” Letter from Pat A. Cipollone, Counsel to the
President, to Representative Nancy Pelosi, Speaker of the House, et al. (Oct. 8, 2019) at 2. The
letter’s announced refusal to cooperate extends to congressional subpoenas, which the President
himself had already vowed to “fight[].” Remarks by President Trump Before Marine One
Departure, WHITE HOUSE (Apr. 24, 2019), https://www.whitehouse.gov/briefings-
statements/remarks-president-trump-marine-one-departure-39/ (“Well, we’re fighting all the
subpoenas.”).
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.
2. The Need for Disclosure Outweighs the Need for Continued Secrecy
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. 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.
48
DOJ has produced redacted FBI-302s for only seventeen of the thirty-three individuals promised. DOJ’s
Supplemental Submission Regarding Accommodation Process (“DOJ First Supp.”) at 3, ECF No. 37.
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See id. at 222 (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 (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. Any risk of
damage to this interest is slim here, for two reasons. First, as DOJ itself emphasizes in arguing
that HJC cannot establish a need for the material, categories one and two of HJC’s request are
relatively “limited.” DOJ Resp. at 6; see also id. at 31 (calling the redactions “minimal”);
Revised ADAG Decl. ¶ 3. Disclosure of “limited” information, including excerpts of grand jury
transcripts, to HJC is unlikely to deter potential future grand jury witnesses. Second, disclosure
is to the House, not to the public, and “less risk of . . . leakage or improper use” of grand jury
material is present when disclosure is made to “government movants.” Sells Eng’g, Inc., 463
U.S. at 445; Hastings, 833 F.2d at 1441 (considering factors “peculiar to the [HJC] as a
government movant”). Here, HJC guarantees that “a high degree of ‘continued secrecy’ could in
fact be maintained” under already-adopted Grand Jury Handling Procedures calling for storage
of the material in a secure location and restriction of access to Members of HJC and HPSCI. See
HJC App. at 38 (citing GJ Handling Protocols); see also In re 1972 Grand Jury Report, 370 F.
Supp. at 1230 (observing that the relevant standard “might well justify even a public disclosure”
but that there is “certainly ample basis for disclosure to a body” that “has taken elaborate
precautions to insure against unnecessary and inappropriate disclosure of these materials”). DOJ
discounts these procedures as “entirely illusory” because they can be altered “on a simple
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majority vote” by HJC, DOJ Resp. at 36, but offers “no basis on which to assume that the
Committee’s use of the [material] will be injudicious or that it will disregard” or change these
procedures, In re 1972 Grand Jury Report, 370 F. Supp. at 1230. Such an assumption would be
inappropriate. See supra Part II.B.3 (discussing deference due to Congress in this matter).
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; 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
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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 I of the Report that DOJ has already identified as presenting potential
harm to ongoing matters. See Second ADAG Decl. ¶ 3.
* * *
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 (1983) (“[T]he district court may weigh the public interest, if any, served by
disclosure to a governmental body.”).
3. Scope of Disclosure Authorized
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 222.49 DOJ is ordered to disclose that material to
HJC promptly, by October 30, 2019. HJC may file further requests with the Court articulating
its particularized need for disclosure of any additional material requested in its initial application.
IV. CONCLUSION
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
49
DOJ concedes that the requests for the material referenced or cited in the report are properly structured.
See DOJ Resp. at 37–38 (challenging only the structure of HJC’s request for material in category three).
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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.
Date: October 25, 2019
__________________________
BERYL A. HOWELL
Chief District Judge
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