Below is my column in The Hill on the recent filings in federal court by the Justice Department opposing the effort of the House Judiciary Committee in seeking grand jury material redacted from the Mueller Report. The Justice Department is relying on the comments of Speaker Nancy Pelosi in arguing that there is no real impeachment investigation proceeding in the House.
Below is the column
Before abruptly ending a press conference this week, an annoyed House Speaker Nancy Pelosi snapped, “Why is it that you are hung up with a word over here when lives are at stake over there?” The word, of course, was “impeachment,” and reporters kept asking about it because the House Judiciary Committee approved something that may or may not be the start of an impeachment investigation. When reporters persisted in asking what the vote meant, Pelosi feigned shock and dismissed them as “the only ones who are so into this.” But that is not quite the case.
Just down the street from Capitol Hill, lawyers could not stop talking about impeachment, and the words of Pelosi were being submitted to Chief Judge Beryl Howell in the District of Columbia in an ironic twist. Two years ago, tweets by Donald Trump were submitted to courts to undermine Justice Department claims in support of his controversial immigration orders. The conflicting statements of the House leadership, including Pelosi, are being submitted by the Justice Department as its principal evidence against the demands of the House, which has been seeking judicial orders to compel disclosure of grand jury evidence, on the basis of this being an impeachment proceeding at long last.
Months ago, I testified before the House Judiciary Committee on its demands for evidence from the White House. I believed some of those demands should prevail. Yet, as the last lead counsel in an impeachment trial, I stressed that the failure to formally declare an impeachment would undermine its position in federal court. For more than two years, I have written about the conspicuous failure of the House to take the obvious steps needed for an impeachment and, most importantly, to do so before time ran out on any real opportunity to impeach President Trump.
The reason is simple. Democratic leaders never intended to impeach Trump. But after winning control of the House in 2018, in part on the expectations they would impeach, they had to give every appearance of wanting to do so without actually doing it. Their new strategy was to investigate every possible allegation against Trump, including those predating his presidency. The information uncovered could be used in the 2020 election while letting the clock run out. Pelosi could declare that time was up and that voters would decide the matter.
In the current litigation, the House is burning time and energy, seeking grand jury material that constitutes a tiny fraction of the information redacted in the special counsel report. For months, the House demanded that Attorney General William Barr turn over that material, even though various experts testified that he lacked the authority to do so. The House finally acknowledged what it knew all along, that only a federal judge can release such information, and only for a “judicial proceeding.”
The House then went to court to litigate the issue while still not formally declaring an impeachment proceeding, wasting additional weeks. Now, about two years too late, the House Judiciary Committee has said it has started something to do with impeachment, but it will not say what exactly. House Judiciary Chairman Jerry Nadler pointedly said that he would not get into what to call the current effort of his panel.
However, when asked if this was a vote to start an impeachment process, House Majority Leader Steny Hoyer categorically answered no. That is curious, since he was one of those members who signed off on a filing stating that it was exactly that. Reprepresentative Hakeem Jeffries, who is the fifth ranking House Democrat, simply said that he did not know if an impeachment investigation had begun with the committee vote.
Now, the Justice Department has submitted those and other statements to the court, to directly contradict the representations of the House. The many opposing statements by Pelosi are given particular significance by the Justice Department, which observed, “Most prominently, the Speaker of the House has been emphatic that the investigation is not a true impeachment proceeding” and quoted her statement a few weeks ago that Democrats were “not even close” to moving on impeachment.
These statements undermine an already tough case for the House, as Pelosi knows. The impeachments of Bill Clinton and Andrew Johnson were investigated in clearly defined phases, each the subject of a resolution passed by the entire House. Indeed, the House Judiciary Committee chairman in the Richard Nixon impeachment expressly stated that a “necessary step” has “always been” the passage of an inquiry resolution. There is also an ongoing debate over whether an actual impeachment investigation is a “judicial proceeding” under Rule 6(e), which governs the secrecy of grand jury material. The House is asking the court to not only treat its investigation as such a proceeding but to do so when House leaders are also contradicting that characterization.
I did not believe tweets by Trump should have been given much weight in lower court decisions on the immigration case. Indeed, he ultimately prevailed before the Supreme Court. I would also be inclined to disregard the statements by House leaders in accepting this as an impeachment investigation. Yet, that still would leave the difficult question of what constitutes a “judicial proceeding” for grand jury disclosures. While grand jury material was produced in the Nixon impeachment, there is lingering uncertainty in the courts over the true scope of this legal term.
But none of this really matters. House Democrats are continuing with a strategy of “planned obsolescence” of impeachment failure designed to occur just before the 2020 election. Even if the House prevails in court, the grand jury information it is seeking would not materially change an impeachment effort, beyond wasting time to guarantee its failure. Whatever the House Judiciary Committee process is, it lacks the focus, urgency, or credibility to be an impeachment. Indeed, the glacial pace of this process over the last two years makes kabuki look like an action film.
Asked by reporters if the House had finally opened an impeachment investigation, Nadler said, “Some call this process an impeachment inquiry. Some call it an impeachment investigation. There is no legal difference between these terms, and I no longer care to argue about the nomenclature.” The problem is that a federal court does care about nomenclature, and the difference here is not between an investigation and an inquiry, but between an actual impeachment and raw politics.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He also served as the last lead counsel in an impeachment Senate trial and previously represented the House of Representatives. You can follow him on Twitter @JonathanTurley.