House panel seeks grand jury material underlying Mueller report

House Judiciary Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerJudiciary members battle over whether GOP treated fairly in impeachment hearings Live coverage: House Judiciary to vote on impeachment after surprise delay House passes bill that would give legal status to thousands of undocumented farmworkers MORE (D-N.Y.) announced Friday that his committee is filing an application in court to obtain the grand jury material underlying former special counsel Robert MuellerRobert (Bob) Swan MuellerJeffries blasts Trump for attack on Thunberg at impeachment hearing Live coverage: House Judiciary to vote on impeachment after surprise delay Trump says he'll release financial records before election, knocks Dems' efforts MORE’s report on Russian interference and possible obstruction of justice by President TrumpDonald John TrumpDemocrats ask if they have reason to worry about UK result Trump scramble to rack up accomplishments gives conservatives heartburn Seven years after Sandy Hook, the politics of guns has changed MORE.

Nadler said that the panel is seeking the material in order to decide whether to recommend articles of impeachment against Trump — perhaps the Democratic chairman’s most significant and public acknowledgement that his committee is considering impeachment as a possibility.

"Because Department of Justice policies will not allow prosecution of the sitting president, the United States House of Representatives is the only institution of the federal government that can now vote President Trump accountable for these actions,” Nadler said at a press conference Friday afternoon, quoting from the application his committee was about to file in court.

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“To do so, the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional duty power of the utmost gravity — recommendation of articles of impeachment. That duty calls in the first instance to the House Committee on the Judiciary,” he continued.

The case was filed in the Washington, D.C., District Court Friday afternoon. The filing argues that the committee needs the grand jury material in order to determine whether to recommend impeachment articles, and it equates the committee’s position to the one Congress was in during the Nixon era when a court disclosed grand jury information from the Watergate investigation. 

“The Committee’s request is consistent with numerous prior instances in which it has sought and obtained grand jury materials when evaluating allegations of misconduct by government officials, including allegations against a sitting President,” the court filing states. 

The filing, which was signed by House General Counsel Doug Letter, requests oral arguments on the application. 

Nadler was joined by several committee Democrats in announcing the suit at the news conference earlier Friday afternoon. Among them was Rep. Jamie RaskinJamin (Jamie) Ben RaskinDemocrats gear up for high-stakes Judiciary hearing Lawmakers to watch during Wednesday's impeachment hearing Pelosi faces tough choices on impeachment managers MORE (D-Md.), a former constitutional law professor who said he personally would define the committee’s actions as an impeachment probe.

“I would say we are in an impeachment investigation,” Raskin said.

Nadler added that he would file a civil lawsuit in “short order” sometime early next week to enforce a subpoena for documents and testimony from Don McGahn if the former White House counsel does not comply with the committee’s demands, indicating the panel was still negotiating with him.

“I will not comment on reports of our ongoing negotiations with Mr. McGahn,” Nadler said.

The announcement came two days after Mueller, now a private citizen, testified for nearly seven hours on Capitol Hill about his Russia investigation. During that appearance, Mueller reiterated that his 22-month investigation did not exonerate Trump and that he did not make a decision on whether the president obstructed the Russia probe because of a Justice Department Office of Legal Counsel opinion stating a sitting president cannot be indicted.

Nadler said Friday that Mueller’s testimony showed clearly that Trump “obstructed justice and abused his office.” Trump, meanwhile, has taken a victory lap following Mueller’s testimony, which was widely interpreted to have had less impact than anticipated.

Nadler has issued a subpoena for Mueller’s full report and underlying evidence in connection with his panel’s sprawling investigation into possible obstruction and other abuses of power by Trump. 

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The Justice Department has allowed Nadler and other Democrats to view a less-redacted version of Mueller’s report that still restricts grand jury material. That information is subject to secrecy under Federal Rule of Criminal Procedure 6(e), unless a court rules otherwise.

The Justice Department has also begun providing to the committee some of Mueller’s underlying evidence related to potential obstruction.

Attorney General William BarrWilliam Pelham BarrJudge rejects DOJ effort to delay House lawsuit against Barr, Ross Holder rips into William Barr: 'He is unfit to lead the Justice Department' Five takeaways on Horowitz's testimony on Capitol Hill MORE has repeatedly maintained that he will not join Democrats in going to court to seek access to this sensitive information, despite their urging that he do so. 

Roughly 10 percent of Mueller’s public report is redacted to conceal details related to ongoing investigations, classified information, details that could infringe on the privacy of third parties and grand jury material. According to The New York Times, about one-fifth of the redacted portions restrict grand jury material. 

Legal experts have told The Hill that Democrats are unlikely to win a case for the grand jury material unless they launch a formal impeachment inquiry. Rule 6(e) generally provides that grand jury proceedings be kept secret, with a few exceptions allowing a judge to grant a court order to release them.

Elie Honig, a former federal prosecutor, told The Hill that the stronger Democrats can make the case that they’re in an impeachment inquiry, the more likely they are to win in court.

“They basically just said, ‘this committee is investigating whether to recommend articles of impeachment,’” Honig said. “If there's any difference between that and an impeachment inquiry, I'm not seeing it.”

Regardless, he said that the fact that lawmakers are debating whether to start impeachment proceedings “is a relevant consideration for the court.”

“I think they have to explain their reason. It should be truthful, it should be compelling. And if you think about it, there's really no more compelling purpose than impeachment,” Honig said.

A judge can order the disclosure of grand jury material that is “preliminarily to or in connection with a judicial proceeding,” which in some cases have allowed for grand jury materials to be shared with Congress in connection with impeachment proceedings.

Democrats have not formally opened an impeachment inquiry into Trump by House vote, though Nadler explicitly acknowledged during a hearing earlier this month that “articles of impeachment are under consideration as part of the Committee’s investigation, although no final determination has been made.”

Nadler noted Friday that the committee’s investigation is distinct from a formal impeachment inquiry, saying there is “one difference which you could draw.”

“An impeachment inquiry is when you are only considering impeachment. That's not what we are doing,” Nadler said. “We are investigating all of this and we are going to see what remedies we could recommend including the possibility of Articles of Impeachment — not limited to that, but that is very much a possibility.”

Judiciary Committee counsels said Friday that they believe they have a strong legal case to obtain the grand jury material, despite the House not formally voting to begin impeachment proceedings. 

“We think given the state of the law and state of what we’re doing … we think we’re squarely in this,” a Judiciary counsel told reporters. 

A handful of Democrats have come out in favor of moving forward with an impeachment inquiry in the wake of Mueller’s testimony. 

House Speaker Nancy PelosiNancy PelosiTrump scramble to rack up accomplishments gives conservatives heartburn Sherrod Brown backs new North American trade deal: 'This will be the first trade agreement I've ever voted for' Overnight Health Care — Presented by That's Medicaid — Turf war derails push on surprise medical bills | Bill would tax e-cigarettes to pay for anti-vaping campaign | .5M ad blitz backs vulnerable Dems on drug prices MORE (D-Calif.) has remained opposed to impeachment proceedings, saying she wants the Democrats’ lawsuits to play out in court. At a press conference earlier Friday, Pelosi rejected the notion she was trying to “run out the clock” on impeaching the president. 

“I’m not trying to run out the clock,” Pelosi told reporters. “We will proceed when we have what we need to proceed."

—Updated at 3:43 p.m.