House Judiciary Chairman Jerrold Nadler has argued that viewing grand jury evidence in the Mueller probe is essential in order to fully investigate potential abuses of power by President Donald Trump and his inner circle. | Win McNamee/Getty Images Congress Judiciary Committee asks a judge to share Mueller's secret grand jury evidence

The House Judiciary Committee has formally asked a federal judge to release former special counsel Robert Mueller’s most closely guarded evidence: the material he gathered using a secretive grand jury.

The petition, submitted Friday to Beryl Howell, the chief judge of Washington, D.C.’s federal district court, asks that the material be provided to Congress, though it does not directly seek the public release of the grand jury evidence.


House Judiciary Chairman Jerry Nadler has sought Mueller’s grand jury evidence since the spring, arguing that it’s essential for Congress to view in order to fully investigate potential abuses of power by President Donald Trump and his inner circle.

Nadler has previously asked the Justice Department and Attorney General William Barr to join him in court to seek the release of the information, but Barr has declined, calling such a move unprecedented.

"When we win — and we will win the court fight because the legal excuses the White House has been using are extraordinarily weak from a legal point of view — when we win, it’ll open up the floodgates to enforce all the subpoenas and get all the testimony because they’re all the same nonsense legal arguments," Nadler said on CNN on Friday morning.

While some Democratic members have been working arduously to build support for a House resolution officially opening an impeachment inquiry against Trump, the new legal filing argues that the committee has been conducting such an investigation for months.

“Where, as here, the Committee is conducting an investigation whose purposes include determining whether to recommend articles of impeachment, that is more than sufficient,” House lawyers argued. “ The Committee…is investigating whether to recommend articles of impeachment and requires access to [grand jury] materials in furtherance of that investigation.”

The legal filing concedes that the full House has yet to directly authorize an impeachment probe, but contends the rules of the House and past precedent do not require it.

“Additionally, although the House has not considered a formal resolution structuring any particular proceedings by this Committee…such a resolution is not a necessary predicate to consideration of articles of impeachment,” the petition says.

Judiciary Committee lawyers told reporters Friday that there’s no need for the House to use “magic words” to recognize that the committee is using its authority to gather information that might lead to impeachment.

“It’s not a light you switch on and off,” said one panel attorney, who asked not to be named.

A spokeswoman for committee Republicans disagreed.

“The House is either formally in impeachment proceedings, which involve both an impeachment inquiry and consideration of articles of impeachment, or we are not. It’s a binary issue,” the spokeswoman, Jessica Andrews, said.

Lawyers for the committee conceded Friday that the last two serious impeachment efforts against presidents did involve House floor resolutions at some point, but noted that many other impeachments of lower-level officials like judges have been thoroughly investigated by the Judiciary Committee before any floor action took place.

Nadler's petition is the start of a new wave of legal action to force more of Mueller's evidence into Congress' hands.

His committee is also working to obtain testimony from one of Mueller's key witnesses, former White House counsel Don McGahn, and had been prepared to go to court for it as recently as Wednesday, though it appeared Friday that there were still ongoing efforts to avoid a protracted legal fight.

Nadler said during his CNN interview that he's eyeing Monday or Tuesday for filing that potential lawsuit. McGahn's attorney, William Burck, did not respond to requests for comment.

Nadler said the effort to obtain McGahn's testimony, as well as interviews with other key Mueller witnesses and Mueller's underlying evidence, are important parts of determining whether the House should impeach the the president. He said the lawsuits are part of an effort to "lay the evidence in detail before the American people," which he said is a necessary precursor to any potential impeachment. So far, nearly 100 House Democrats have come out in favor of opening an impeachment inquiry, but House Speaker Nancy Pelosi has held firm against it, favoring a slower path through the courts to build a case.

Though lawmakers on the Judiciary and Intelligence committees — in both the House and Senate — have been granted access to much of the Mueller report that was redacted from the publicly-released version, the grand jury material, which includes interviews with high-profile Trump associates, is not being shared.

The requested information would also likely show which individuals exercised their Fifth Amendment right not to testify — details that also appear to have been redacted from the report.

The committee’s request goes beyond information cited in or underlying the Mueller report, seeking a broad set of grand jury records including those reflecting “knowledge of any potential criminal acts by him or any members of his administration, his campaign, his personal associates, or anyone associated with his administration or campaign.”

There is also a specific ask for all grand jury material related to McGahn’s role in the Trump campaign, the transition and the White House.

Nadler’s court filing also notes Congress has previously received grand jury material — during Watergate inquiries and after independent counsel Ken Starr’s investigation of President Bill Clinton.

But longstanding federal rules forbid the release of grand jury information except in limited circumstances, such as at the request of state prosecutors or a criminal defendant seeking exculpatory evidence. And although judges have previously exercised discretion to make exceptions, a recent federal appeals court ruling held that they must abide by the strict language of the rules.

The Judiciary Committee’s submission relies primarily on one exception in the rules they say applies to them: providing material to parties “preliminarily to or in connection with a judicial proceeding.” Courts have previously determined that an impeachment inquiry would qualify as a “judicial proceeding” that could satisfy this exception. Though the Judiciary Committee has not launched an impeachment inquiry, Nadler has argued that its ongoing investigations of Trump qualify as “preliminary” proceedings.

Legally, the House may be riding into the court battle with one arm tied behind its back. Because Pelosi and some other leaders have so far resisted opening an impeachment inquiry, the effort to secure the grand jury secrets is likely to have less traction than it would have had as part of such a move by the House.

During Watergate, District Judge John Sirica approved disclosure to the House Judiciary Committee of a "road map" prepared by a grand jury impaneled to investigate the President Richard Nixon and his aides. Congress also received a bulging briefcase of supporting materials.

A 1974 ruling from the full bench of the D.C. Circuit Court of Appeals that declined to block Sirica’s decision is still on the books. It appears to bless handing over grand jury information to Congress in such situations under the theory that an impeachment proceeding is a judicial proceeding akin to a case in federal court.

However, another D.C. Circuit panel ruled 2-1 in April that judges don’t have the right to lift grand jury secrecy solely because they deem doing so to be in the public interest. On Monday, the full bench of the appeals court turned down a request to revisit that decision.

Other courts have split over whether judges can order release of grand jury information in circumstances not specifically outlined in federal court rules. In February, a panel of the Atlanta-based 11th U.S. Circuit Court of Appeals ruled in favor of an author seeking access to records on the probe into a Georgia lynching in the 1940s. However, that decision was wiped out in June after the full bench of that court decided it would weigh in on the case.

The New York-based 2nd Circuit and the Chicago-based 7th Circuit have upheld judges’ right to release grand jury material sought by historians or in other circumstances not mentioned in the rule. However, the St. Louis-based 8th Circuit indicated in a 2009 case stemming from the Whitewater investigation that judges don’t have that authority.

Democrats on the House Intelligence Committee, too, have made the case that they should have access to Mueller’s grand jury information, pointing to yet another exception that allows prosecutors to share grand jury material with “any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties.”