Below is my column in The Hill Newspaper on the increasingly disconnected elements in the investigations by the House of Representatives. The question is whether there is a true strategy behind these moves other than an investigation for investigation’s sake.
Here is the column:
Watching Congress this week brought back vivid memories of my first encounter with “atonal music” in college. It was not a good memory. Atonal music dispenses with the traditional concepts of harmony or tonal center. I have a certain bias, in both musical and constitutional works, for a harmonic connection of notes — and that’s what’s missing in the legal controversies building on Capitol Hill. While Democratic presidential candidates and members of Congress insist impeachable offenses are clearly established, their legal positions are becoming increasingly disconnected.
Seeking the full report
For weeks, Democrats have insisted that Attorney General William Barrmust release special counsel Robert Mueller’s “full and unredacted report.” They dismissed objections that some information such as grand jury evidence, called Rule 6(e) material, cannot be legally released by Barr. The House Judiciary Committee issued a subpoena for “a complete, unredacted copy, including exhibits and attachments.” It maintained that “neither Rule 6(e) nor any applicable privilege barred disclosure of these materials to Congress.”
Yet, in holding Barr in contempt this week, the committee stated that, despite a subpoena demanding the unredacted report, it was not demanding the release of grand jury material. Instead, it wanted Barr to ask a federal court to release the information —something Congress can do on its own. Not only would such a request be a departure from the long-standing position of the Justice Department in protecting Rule 6(e) material, but it would run into a ruling last month from the D.C. Circuit Court rejecting such releases.
The change in the committee’s position creates a disconnect between the subpoena and the contempt sanction, on the one hand, and the position of the House in a court. It also means the House now recognizes what Barr and many of us have said for weeks: Barr cannot release Rule 6(e) information without a court order. This leads to the second atonal note of delaying impeachment.
For months, I have written about the dilemma facing Democrats who won control of the House in part with calls to impeach President Trump. The House leadership never showed any interest in actually impeaching Trump as opposed to appearing to want to impeach him. Yet, House members have told constituents that the Mueller report confirms impeachable acts. While House Speaker Nancy Pelosi (D-Calif.) maintains Trump is goading them to impeach him, her argument hardly resonates with voters who were told to wait for the report for any moves on impeachment.
This week a new explanation has emerged: We would love to impeach but Barr is withholding necessary information in these redactions. That point was stated by Rep. Ted Deutch (D-Fla.) who was asked on CNN why Democrats have cited impeachable offenses but refused to initiate the impeachment process. When Deutch proceeded to again describe the “constitutional crisis” caused by Trump’s obstruction, host Alisyn Camerota replied: “If it’s an impeachment proceeding, then somebody should call it that.”
Camerota is right. If House members truly believe Trump committed criminal or impeachable acts, they should commence an impeachment proceeding. If they truly wanted to get this information, they would do so as a matter of impeachment, not oversight authority. Congress is more likely to win the conflict over executive privilege — and do so more rapidly — under an impeachment inquiry. Deutch’s response was tellingly adamant: “This isn’t impeachment.” He suggested that Congress needs to fight over the redactions and underlying documents before it decides to impeach.
Of course, House members are entitled to seek such additional information in an impeachment process. Moreover, Barr released 98 percent of the report to select members of Congress, and more than 92 percent to the public. Two percent of the redacted material is believed to be grand jury information, which the House Judiciary Committee now acknowledges might have to be released not by Barr but by a federal court. That leaves just 6 percent — which already is available to select members of Congress. Some of that information is evidence under seal in ongoing prosecutions of figures like Trump associate Roger Stone. Again, a court — not Barr — must release that.
The key to appreciating atonal music is listening between the notes. This is not about less than 6 percent of withheld material or supporting documents. The disharmonious point here is not to impeach. By triggering a variety of court challenges, the House can wait for the information until it runs out of time to impeach. The truly wicked aspect to all of this is that both the White House and the House leadership are working for the same end in running out the clock.
Democrats have legitimately demanded to hear from key witnesses, including Mueller and former White House Counsel Don McGahn. President Trump has declared they should not testify, and Congress should prevail on that fight — but conflicting positions have emerged. Consider the disappearance of Deputy Attorney General Rod Rosenstein, who once was at the top of any witness list. Suddenly, no one seems to want to hear from him. That may have to do with his conclusion that the evidence in the Mueller report did not support a criminal charge of obstruction.
For two years, Democrats heralded Rosenstein as essential to the supervision of the Russian investigation. They pledged to resist any effort to remove or fire him before a conclusion was reached in the investigation. Rosenstein could confirm critical facts raised by Barr. For example, Barr testified that Mueller refused to identify grand jury information to allow for a rapid public release of the report. Barr said both he and Rosenstein — Mueller’s superiors — requested that he do so, and Mueller’s refusal delayed the report’s release. Likewise, Rosenstein can confirm that both he and Barr told Mueller there was no policy preventing him from reaching a conclusion on obstruction, and encouraged him to reach one.
Yet, Rosenstein is now being publicly “dehabilitated.” For the last two years, I raised concerns about Rosenstein’s conflict as a key witness to the obstruction allegations. And, for two years, Democrats dismissed such concerns. Yet, after he decided there was no evidence to support an obstruction charge, Democrats suddenly raised his conflict of interest. Sen. Kamala Harris (D-Calif.) confronted Barr in his Senate hearing over “the appropriateness of Rod Rosenstein being a part of making a charging decision on an investigation which he is also a witness in.” She demanded to know the ethical basis for his role in the investigation — a concern that eluded Harris and her colleagues the previous two years.
The problem for Congress is that courts expect some tonal center or coherence in constitutional claims. From a constitutional standpoint, none of this looks like a plausible effort to build an impeachment case in the limited time before the 2020 elections. Indeed, members have denied this is an impeachment effort and left their actions to be viewed as disconnected oversight challenges. It increasingly looks like investigation for investigation’s sake – notes without harmony. The Encyclopedia Britannica concluded that “atonality proved unable to sustain large-scale musical events.” The same is true for large-scale constitutional events.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.