The Justice Department cited House Speaker Nancy Pelosi’s reluctance to use the term “impeachment investigation" to argue in court filings against the release of grand jury testimony from the special counsel’s Russia investigation. | J. Scott Applewhite/AP Photo Legal DOJ cites Dems' mixed-up impeachment messages to undercut House probe

The Justice Department on Friday flatly rejected House Democrats’ claim that they’re in the midst of an “impeachment investigation” into President Donald Trump, pointing to the scattershot messaging by Democratic leaders in recent days — even citing Speaker Nancy Pelosi’s reluctance to use the term at a news conference just a day ago.

In a new court filing on Friday, Justice Department lawyers argued that the House Judiciary Committee’s effort to obtain former special counsel Robert Mueller’s most sensitive secrets — evidence and testimony collected by a grand jury — should be denied, in part because House Democrats can’t agree on what to call their investigation.


“Most prominently, the speaker of the House has been emphatic that the investigation is not a true impeachment proceeding,” the lawyers wrote, citing Pelosi’s June statement that Democrats were “not even close” to such a move.

House Democrats’ attempt to access Mueller’s grand-jury information hinges on the courts acknowledging that they are conducting an impeachment investigation. The Judiciary Committee argued in late July that their impeachment investigation satisfies one of the exceptions to federal grand jury secrecy rules: that the House is engaged in an “impeachment investigation” and therefore is taking an action preliminary to a “judicial proceeding” — the Senate’s trial on whether to remove Trump from office.

But the Justice Department rebuffed that claim on Friday, citing inconsistent statements from senior Democratic leaders — as well as their own claims that the ongoing investigation might lead to innumerable outcomes other than an impeachment vote.

“The committee’s own description of its investigation makes clear that it is too far removed from any potential judicial proceeding to qualify,” the filing states.

“As the committee’s chairman has stressed—and as the speaker of the House and the House majority leader both reiterated this week—the purpose of its investigation is to assess numerous possible remedial measures, including censure, articles of impeachment, legislation, Constitutional amendments, and more,” it continues. “What may come of this investigation—if anything—remains unknown and unpredictable.”

Senior Democrats expressed concern this week that the lack of a unified message on impeachment could hurt their prospects in court, as they seek access to Mueller’s secret files and testimony from his key witnesses, which they say is necessary in order to determine whether Trump should be impeached.

Even if a judge determined that the House activities were close enough to a preliminary impeachment probe, the Justice Department’s lawyers went further, arguing that impeachment itself — and a removal trial in the Senate — would still fall short of an exception to grand jury secrecy.

“[I]mpeachment proceedings in Congress — including hypothetical removal proceedings in the Senate — are not ‘judicial proceedings’ under the plain and ordinary meaning of that term,” they wrote.

The filing comes a day after the committee approved a set of technical procedures for its impeachment investigation, the most significant legislative move yet in Democrats’ potential effort to oust the president. Impeachment supporters said approving the parameters was a historic embrace of ongoing impeachment proceedings, but other Democrats — including Pelosi — publicly downplayed the move.

New Window INTERACTIVE: See which House lawmakers support impeachment.

The messaging whiplash highlighted some Democrats’ reluctance to embrace the “impeachment” moniker, amid competing political priorities within the House Democratic Caucus. Moderate Democrats, particularly those who are vulnerable in 2020, have shied away from impeachment talk, while the party’s progressive base has urged Pelosi and her leadership team to adopt a more aggressive posture.

House Majority Leader Steny Hoyer (D-Md.) initially offered a flat “no” this week when asked if an impeachment investigation had begun, even though he had signed off on the House’s legal filings which stated otherwise. He later walked back those comments. And the No. 5 House Democrat, Rep. Hakeem Jeffries of New York, on Wednesday said he wasn’t sure whether an impeachment investigation had begun, before voting to support it on Thursday.

Last month, Judiciary Committee Chairman Jerry Nadler (D-N.Y.) said his panel was engaged in “formal impeachment proceedings,” a rhetorical escalation that echoed what House lawyers had told federal judges in recent court filings. Nadler has also said that if the courts move quickly to address the House litigation, his committee could recommend articles of impeachment by the end of the year. The Justice Department cited Nadler’s comments in its filing on Friday.

Nadler and his allies say no formal vote of the House is needed to open an impeachment inquiry, noting that the impeachment of judges and some executive branch officials that the Judiciary Committee has overseen in recent decades required no House authorization.

Though DOJ lawyers attributed their argument in large part to the fact that Democrats said impeachment wasn’t the sole focus of their investigation, Nadler reiterated Friday night that it remains just one possible outcome.

“We have been very clear the last several months in filings into with the court, in public statements, in official statements in the committee that we are conducting an investigation with the purpose, among other things, of determining whether to report articles of impeachment to the entire House,” he said on CNN, when asked to respond to DOJ’s argument.

But Republicans say impeaching a president is a weightier step and that Democrats are refusing to provide the probe full House authorization because they lack the votes — a dynamic driven in part by Pelosi’s outward resistance to taking that step.

Pelosi is mindful of forcing her most vulnerable caucus members to take a politically difficult vote when impeachment efforts are all but doomed in the Republican-controlled Senate. She has repeatedly argued for continued litigation against and investigation of the president even though a majority of House Democrats now favor impeachment or an impeachment inquiry.

Republicans have pointed to Pelosi’s comments as evidence that no formal inquiry has begun, with GOP leaders calling Democrats’ setup a “sham.”

“Their imaginary impeachment is going nowhere,” House GOP leader Kevin McCarthy said Friday morning at House Republicans’ annual retreat in Baltimore.

In their own legal filings, Democrats say they need Mueller’s grand jury material because it could pertain to their consideration of articles of impeachment against Trump. Mueller, in his 448-page report released in April, revealed evidence — some based on grand jury testimony — that Trump repeatedly attempted to obstruct the investigation of Russian interference in the 2016 election.

The Justice Department on Thursday shared with the Obama-appointed judge — Beryl Howell, chief judge of the federal district court in Washington — elements of the grand jury material the House is seeking to obtain.

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In their initial filing in July, Democrats argued that their authority for claiming to be in the midst of an impeachment probe stems from “Jefferson’s Manual” — a guide to parliamentary procedure employed by the House and Senate. The manual indicates that impeachment proceedings can be launched in a variety of ways, not just through a formal vote of the House. One method is via the referral of articles of impeachment to the Judiciary Committee.

As Nadler and other Democrats note, the House referred articles of impeachment to the committee in January, and they say those articles are now officially under consideration for approval or amendment.

Democrats in recent weeks have pointed to a series of House actions they say bolster their position. In early June, the House voted to allow all committee chairs to enforce subpoenas in court — with the approval of House leaders acting on behalf of the entire chamber.

And last month, the House adopted a resolution declaring all Trump-related subpoenas and demands for information — retroactively and into the future — to have the support of the full House. Impeachment inquiry supporters say this is evidence that the House intended, however indirectly, to back impeachment proceedings without a formal vote.

Similarly, Judiciary Committee officials have noted that previous votes to authorize impeachment proceedings have been intended to empower the committee to issue subpoenas and convene depositions in an era when committees had far less authority than they do in the modern era. Now, the committee already has subpoena and deposition authority, they note.

Matthew Choi contributed to this report.