House Judiciary Committee doomed for failure with impeachment inquiry

Various commentators, on and off the House Judiciary Committee, have suggested that it will have a better chance of getting grand jury testimony in the investigation by 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 or testimony from White House counsel Don McGahn, if it styles itself as a preliminary impeachment inquiry. This is probably why Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerDemocrats shoot down talk of expanding Supreme Court Schumer: 'Nothing is off the table' if GOP moves forward with Ginsburg replacement Top Democrats call for DOJ watchdog to probe Barr over possible 2020 election influence MORE has finally begun to call the impending actions of the committee an impeachment investigation. But without an actual vote by the House to authorize an impeachment inquiry, this strategy seems certain to fail.

Under normal circumstances, the committee would not be able to get either grand jury testimony or an opportunity to question McGahn. The law surrounding grand jury testimony is very restrictive, and the few cases in which it may be made available, always by order of a court, do not include investigations by congressional committees. Similarly, President TrumpDonald John TrumpBiden on Trump's refusal to commit to peaceful transfer of power: 'What country are we in?' Romney: 'Unthinkable and unacceptable' to not commit to peaceful transition of power Two Louisville police officers shot amid Breonna Taylor grand jury protests MORE is certain to object to McGahn testifying on executive privilege grounds, which he has already asserted in other cases.

But the committee seems to now be suggesting that its inquiry is a preliminary investigation that might lead to a resolution of impeachment by the House, and this raises the question whether a committee engaged in such an investigation has a stronger case to receive both grand jury testimony and testimony from White House counsel than it would when simply engaged in a normal oversight investigation.

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If so, this would clearly complicate the effort by Trump to deny the committee the testimony of his counsel and the effort by the Justice Department to prevent disclosure of grand jury information. Impeachment inquiries, thankfully, have been few and far between, but their very rarity and importance is an argument for suspending the usual rules about what a House committee might be entitled to. If this is what the committee claims, that they are engaged in an impeachment inquiry, it could go all the way to the Supreme Court, perhaps on an expedited basis.

However, the committee is likely to lose every judicial challenge unless the House itself adopts a resolution authorizing an impeachment inquiry. Absent a vote of the full House, it is highly unlikely that the courts will give credence to a House committee claiming to be an impeachment inquiry in order to bypass all the usual rules about obtaining grand jury materials or the testimony of potential witnesses. These rules exist to promote candor in grand juries and between the president and his advisers.

Although a question of first impression, any judge before whom the committee seeks to press its case will immediately recognize that authorizing a congressional committee to act as an impeachment committee, on its own motion, would open the door in the future to the circumvention of all these protective rules. As usual in these cases of competing policies, the courts will weigh the “equities” of each party.

Is enforcing the vote of a congressional committee more important in this case than preserving the candor that is sought for grand jury testimony or legal or other advice given to a president? Stated this way, it seems clear that a congressional committee seeking this kind of information, without an actual vote by the House to authorize an impeachment inquiry, indeed when the House Speaker has thus far opposed a vote by the full House, would be advancing a very weak case indeed.

We still do not know how much these candor protections can be circumvented in an investigation that is authorized by an actual House impeachment resolution, but it seems clear that at this point, without an authorizing vote of the whole chamber, the effort led by Nadler and the House Judiciary Committee is destined to fail.

Peter Wallison is a senior fellow at the American Enterprise Institute. He was White House counsel in the Reagan administration. His latest book is “Judicial Fortitude: The Last Chance to Rein the Administrative State.”