Impeachment or investigation? Democrats send mixed signals

Impeachment or investigation? Democrats send mixed signals
© Greg Nash

Watching Congress this week brought back vivid memories of my first encounter with “atonal music” in college. It was not a pleasant 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. That is missing in the legal controversies building on Capitol Hill. While Democratic presidential candidates and lawmakers insist that impeachable offenses are clearly established, their legal positions are becoming increasingly disconnected in these areas.

Seeking the full report

Democrats have been insisting that Attorney General William BarrBill BarrGOP senator says Trump commuting Stone was a 'mistake' Barr recommended Trump not give Stone clemency: report Trump commutes Roger Stone's sentence MORE release the “full and unredacted report” of special counsel Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE. 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 has issued a subpoena for a “complete” copy that includes “exhibits and attachments.” It maintained “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 declared that, despite a subpoena demanding the full and 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 is such a request a major departure from the long observed Justice Department policy of protecting any Rule 6(e) material, it would run into a ruling last month by the United States Court of Appeals for the District of Columbia Circuit rejecting such releases.

This change in position creates a disconnect between the subpoena and the contempt sanction on the one hand, and the position of the House in federal court on the other hand. It also means the House now recognizes what Barr and many of us have said for weeks, which is that the attorney general cannot release any Rule 6(e) information without a federal court order. This leads us to the second atonal note of delaying impeachment.

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 TrumpDonald John TrumpDeSantis on Florida schools reopening: 'If you can do Walmart,' then 'we absolutely can do schools' NYT editorial board calls for the reopening of schools with help from federal government's 'checkbook' Mueller pens WaPo op-ed: Roger Stone 'remains a convicted felon, and rightly so' MORE. The House leadership never showed any interest in actually impeaching Trump as opposed to appearing to want to impeach him. Yet, House members have been telling constituents that the special counsel report confirms impeachable acts. While House Speaker Nancy PelosiNancy PelosiAs coronavirus surges, Trump tries to dismantle healthcare for millions Sunday shows preview: Coronavirus poses questions about school safety; Trump commutes Roger Stone sentence Pelosi plans legislation to limit pardons, commutations after Roger Stone move MORE maintains Trump is goading them to impeach him, her argument hardly resonates with voters who were told to wait for the report before any moves on impeachment.

A new explanation has emerged this week that Democrats would love to impeach Trump, but Barr is withholding necessary information in these redactions. That point was stated by Representative Ted Deutch who was asked on air why Democrats have cited impeachable offenses but refused to initiate the impeachment process. When Deutch described obstruction by Trump as causing a “constitutional crisis,” host Alisyn Camerota noted, “If it is an impeachment proceeding, then somebody should call it that.”

Camerota is right. If House members truly believe that 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 adamantly responded, “This is not impeachment.” He suggested that Congress needs to battle it out over all the redactions and underlying documents before it decides to impeach.

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. The 2 percent redacted material is likely grand jury information, which the committee now acknowledges might have to be released not by Barr but by a federal court. That leaves 6 percent of the report, which is indeed available to those select members of Congress. Some of that information is evidence under seal in the ongoing prosecutions of figures like Trump associate Roger Stone. A federal court again must release those details.

The key to appreciating atonal music is listening between the notes. This brewing controversy is not about less than 6 percent of withheld material or supporting documents of the report. The disharmonious point is to not impeach Trump. By triggering a variety of court challenges, the House can wait for the information until it runs out of time to impeach him. The truly wicked aspect to all of this song and dance is that both Trump and the House leadership are working for the same end in running out the clock.

Demanding testimony

Finally, Democrats have legitimately demanded to hear from several key witnesses, including Mueller himself and former White House counsel Don McGahn. Trump has declared that they should not testify, and Congress should prevail on that fight, but conflicting positions have since emerged. Consider the disappearance of Deputy Attorney General Rod Rosenstein, who once was at the top of witness lists. Suddenly, no one seems to want to hear from him. It may have to do with his conclusion that the evidence in the Mueller report did not support the criminal charge of obstruction.

For two years, Democrats heralded Rosenstein as essential to supervising the Russia investigation. They pledged to resist any effort to remove or fire him before a conclusion was reached. Rosenstein could confirm critical facts raised by Barr, who testified that Mueller refused to identify grand jury information to allow for a rapid release of the report. Barr said he and Rosenstein, who both oversee Mueller, requested he do so, and the refusal of Mueller delayed the release. Likewise, Rosenstein can confirm both he and Barr told Mueller there was no policy preventing him from reaching a conclusion on obstruction, and also even encouraged him to reach one.

Yet, Rosenstein is now being publicly dehabilitated. I have raised concerns about his conflict as a key witness to the obstruction allegations. 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. Senator Kamala Harris confronted Barr in his Senate hearing over the “appropriateness” of 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, a concern that conveniently eluded Harris and her colleagues the previous two years.

The problem for Congress here is that federal courts expect some tonal coherence in legal arguments. From a constitutional standpoint, none of this looks like a plausible effort to build an impeachment case during the limited time before the 2020 election. Indeed, lawmakers have denied this is an impeachment effort and leave their actions viewed as disconnected oversight challenges. It increasingly looks like investigation for the sake of investigation. Their claims are notes without harmony. The Encyclopedia Britannica concludes 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.