The impeachment inquiry won't make Trump any less trustworthy to his supporters
Why Trump could lose his bid to block House access to grand jury material
Last Friday, the Justice Department submitted its 39-page brief in opposition to the House Judiciary Committee's application for access to certain grand jury testimony and documents from special counsel Robert Mueller's investigation. The arguments of both sides now are on the table, and it is time to assess each side's likelihood of success. Making such an assessment is a common use of a lawyer's skill, in my case aided by having served on the committee's Nixon Impeachment Inquiry.
For the reasons set forth below, it is my opinion that the Judiciary Committee will prevail. I put President Trump's chances of prevailing in the District Court and the D.C. Circuit at roughly one-in-five, and of prevailing in the Supreme Court at one-in-three.
Three issues are framed by the department's brief. The Constitution's impeachment process must fit within the "judicial proceeding" exception to the rule of grand jury secrecy; the committee's current work must be "preliminary to" that impeachment process; and, the committee must have a particular need for the information it seeks.
In 1974, in Haldeman v. Sirica, the D.C. Circuit, whose decisions are binding on the District Court, upheld Judge John Sirica's decision to provide grand jury material to the House Judiciary Committee to aid its impeachment investigation.
Just last April, the D.C. Circuit revisited Haldeman in connection with its ruling that the only exceptions to grand jury secrecy are those found in statute. The majority, consisting of a Trump appointee and a Reagan appointee, affirmed Haldeman's continuing validity by expressly reading Haldeman to fit within the judicial proceeding exception. The District Court cannot overrule, and the D.C. Circuit is unlikely to overrule, Haldeman and, therefore, that case is dispositive of the "judicial proceeding" issue.
The president also has a poor chance of prevailing on the issue of whether the current impeachment work of the committee is "preliminary to" an impeachment proceeding. The only way to distinguish the Haldeman precedent is that there has been no House vote authorizing an impeachment investigation; the committee is conducting such an investigation on its own initiative.
The committee has made a strong showing that it has this independent initiative authority. The Justice Department does not rely on the lack of a vote, other than to note it, but rather argues that the committee's investigation may well not lead to impeachment. That was equally true of the Nixon impeachment inquiry. Therefore, the argument being made by the department is foreclosed in the D.C. Circuit, given the continuing validity of Haldeman.
Finally, the department's argument that the committee has no particular need for the requested grand jury testimony and documents is unlikely to persuade either court. The committee is not bound by Mueller's evaluation of the evidence and is not required to make that evaluation based on proof beyond a reasonable doubt, as was Mueller. In the Nixon case, the committee drew its own inferences from the testimony presented to the grand jury, and the current Judiciary Committee and Senate Select Committee again need that actual testimony to make their own judgments.
That brings us to the Supreme Court - a whole new kettle of fish, as they say. The Supreme Court is not bound by the Haldeman decision. The extensive critique of that decision in the department's brief suggests that the brief is written more for the Supreme Court than the District Court. Plainly, the department expects that a Supreme Court majority will be sympathetic to its argument that the process of impeachment by the House and trial in the Senate is a political, rather than a judicial, process. Indeed, if the District Court rules against the department, it would not be surprising to see the department seek to bypass the D.C. Circuit and directly seek a stay and review in the Supreme Court.
Why are President Trump's chances of winning in the Supreme Court only one-in-three? First, the argument that the Senate is not engaged in a judicial function when it tries articles of impeachment is at best an awkward argument for the four Supreme Court justices who describe themselves as "originalists," jurists claiming to be bound by the original understanding of the Framers.
The Framers of our Constitution were well aware of the English impeachment practice and, in particular, the impeachment of Warren Hastings, which was led by Edmund Burke and was under way as our Constitution was being drafted. Specific reference to the Hastings impeachment was made during the Philadelphia debates, and that practice influenced the wording of the Constitution's impeachment clause.
In England, impeachments were tried in the House of Lords as a part of its judicial function. No doubt, impeachments and the trials of impeachment were affected by political motivations, but the trials remained a judicial function. This practice was carried into our Constitution. As Judge Richard Posner has written, the Framers of the Constitution "entrusted the Senate with judicial responsibilities in impeachment cases."
Second, it only takes five votes on the Supreme Court for the committee to prevail. Five votes are unlikely to support consigning the impeachment process to the ashcan of mere politics. Certainly, the Nixon impeachment inquiry made every effort to avoid a political impeachment.
As required by the Constitution, senators are sworn by the chief justice "to do impartial justice according to the Constitution and the law" when sitting as judges in a presidential impeachment trial. No matter how much it may be in President Trump's interest to cast the impeachment process as essentially political, that would be a great disservice to the proper role of removal for cause by impeachment and Senate trial in our system of checks and balances.
Evan A. Davis was a member of the U.S. House Judiciary Committee Impeachment Inquiry staff in 1974 and led the Watergate and Cover-up Task Force. He is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).