Speaker of the House Nancy Pelosi speaks during the introduction of the Climate Action Now Act on Capitol Hill on Wednesday. (Photo: Joshua Roberts/Reuters)

In the aftermath of the special counsel’s investigation, Washington is girding for a conflict between Capitol Hill and the Department of Justice over Congress’s and the public’s access to the contents of special counsel Robert Mueller’s report and the evidence collected by his investigation, including the grand jury evidence.

However, there is a complication that neither congressional Democrats nor the Department of Justice appear ready to acknowledge or discuss: The strength of the legal authority supporting lawmakers’ demand for grand jury evidence depends in part on whether those materials are sought in connection with an impeachment inquiry, something party leaders have publicly disavowed.

“I’m not for impeachment,” House Speaker Nancy Pelosi said in a Washington Post magazine interview earlier this month. “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country. And he’s just not worth it.”

The battle over grand jury material was already alluded to in Attorney General William Barr’s letter to Congress on Sunday, in which he noted the special counsel’s report contains grand jury evidence that would be kept under wraps, citing the general procedural rule governing secrecy of these proceedings. The heads of the congressional investigating committees, in response, have signaled that they expect Mueller’s entire report and everything that he gathered, including the grand jury materials, to be turned over.

In their reply to Barr, the committee chairs noted — without going into detail — that there’s legal authority for the release of grand jury materials to Congress “under similar circumstances.”

Democratic House and Senate staff have confirmed that they want that evidence. “We expect the grand jury materials,” Shadawn Reddick-Smith, a spokesman for House Judiciary Chairman Jerrold Nadler, said. A spokesman for Senate Judiciary ranking member Dianne Feinstein, Tom Mentzer, added that Democrats’ calls for the Mueller report and underlying evidence “would certainly include the grand jury materials.”

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But that means Democrats leading the House investigative committees will have to convince Department of Justice lawyers that turning over grand jury materials to Congress is permissible, or go to court to compel the production of those materials.

House Judiciary Committee Chair Jerrold Nadler, D-N.Y., walks through the Capitol on Wednesday. (Photo: J. Scott Applewhite/AP)

If Democrats frame their requests as preliminary to a potential impeachment proceeding, they would likely be on stronger legal footing because it would make an exception to the general rule of grand jury secrecy available to them — one that likely would not be available for a simple oversight request. However, adopting that stronger legal position to obtain investigative materials would run the risk of contradicting the political messaging of Democratic leaders, including Pelosi, who have sought to take impeachment off the table.

House and Senate Democrats declined to answer questions about the specifics of their precedent and whether it may be influenced by impeachment. The Department of Justice, likewise, did not respond to repeated requests for comment.

Grand jury secrecy is a long-established tradition under the common law.

The Fifth Amendment to the Constitution makes the grand jury an integral part of federal criminal investigations. It provides, in part, that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” Accordingly, unless a cooperative defendant is willing to waive the requirement, every federal prosecutor must obtain the agreement of a grand jury in order to bring serious criminal charges.

While this requirement is a theoretical check on the prosecutor’s power, a commonplace joke is that a grand jury, if asked by prosecutors, will indict a ham sandwich.

The grand jury is also a potent investigative tool. A venerable institution of the common law that first the American colonies and then the United States inherited from England, grand juries have extraordinary investigative powers and scope. A grand jury consists of 16 to 23 citizens drawn at random from the jurisdiction where the criminal proceeding is expected to be held.

In starting an investigation, grand juries are not constrained by any burden of proof. The Supreme Court has written that a grand jury may “investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” Probable cause, which is required in other criminal proceedings, is the endpoint of a grand jury’s work. A grand jury, in other words, has the ability to compel a person to provide testimony or documents without any required pretext, and because lying to a grand jury is a serious felony, prosecutors are able to use these proceedings to extract detailed and intimate information.

By tradition, these investigations are secret. Congress codified that secrecy as part of the federal rules on criminal proceedings, which prohibit grand jurors or prosecutors from disclosing matters that occur before the grand jury, subject to several exceptions where disclosure is allowed.

In his letter to Congress on Sunday, Barr indicated that one of the first steps in his “processing” of Mueller’s report would be identifying grand jury materials “that by law cannot be made public,” but left out any discussion of the exceptions.

Attorney General William Barr leaves his house in McLean, Va., on Monday after special counsel Robert Mueller found no evidence of collusion between President Trump’s campaign and Russia in the 2016 election. (Photo: Joshua Roberts/AP)

The exceptions allow for disclosures to other government attorneys and personnel for purposes of law enforcement, counterintelligence or counterterrorism, etc., or a judge can authorize the disclosure of grand jury information in connection with a “judicial proceeding” or in the exercise of the court’s “inherent authority” over grand jury matters. None of the exceptions expressly recognizes a congressional right to get grand jury materials, but a number of courts have found that Congress can rely on the established exceptions in certain situations.

“Although no exception to grand jury secrecy explicitly encompasses disclosures to Congress,” the Congressional Research Service (CRS) wrote in a summary published in January, “a few of the exceptions could apply to Congress in particular situations.”

The CRS summary points out that the “judicial proceeding” exception is likely available to Congress only in an impeachment scenario.

The House chairs echoed that general statement in their letter back to Barr, writing, “There is precedent for the release of such materials to Congress under similar circumstances.” But they did not get into specifics.

CRS legislative attorney Michael Foster wrote that a pair of court rulings had rejected a congressional committee’s request for grand jury materials in its ordinary investigative and oversight role. The courts reasoned that those traditional committee functions were “too remote” from any judicial proceeding to trigger the “judicial proceeding” exception.

“By contrast,” Foster continued, “where a congressional committee has sought grand jury materials in connection with the contemplated impeachment of a specific public official, several courts have recognized that court-ordered disclosure may be available pursuant to the ‘judicial proceeding’ exception.”

The key distinction is that an impeachment proceeding involves the prospect of a trial in the Senate to hear the charges against the public official and decide whether the individual ought to be removed from office; several courts have recognized an impeachment trial as a quasi-judicial proceeding similar enough to a proceeding in court that it justifies the use of the “judicial proceeding” exception.

Foster and his colleagues at the CRS did not respond to a request for an interview about his summary.

Special counsel Robert Mueller departs St. John’s Episcopal Church, across from the White House in Washington, on Sunday. (Photo: Cliff Owen/AP)

With or without the threat of impeachment, there is a possibility that Democrats could obtain disclosure if a court, recognizing that the fight over the Mueller materials is an extraordinary circumstance, exercises its authority over grand jury matters to make a disclosure. This is exactly what happened in 1974, when the grand jury materials from the Watergate special prosecutor’s investigation were handed over to Congress.

If grand jury materials from the special counsel’s report or investigation are disclosed to Congress with a court’s permission, the secrecy rules would not prevent the further disclosure of those materials by members — however, the court could seek to impose restrictions on any further release.

Whatever the court decides, it appears likely that Democrats in Congress will pursue the materials. “Democrats should do all they can to get the grand jury material underpinning the Mueller report,” said a Democratic staffer, speaking on condition of anonymity because the source was not authorized to discuss the matter.

The grand jury materials will “likely be critical to understanding the special counsel’s conclusions and evidence behind them,” the staffer said.

“Let’s not pretend Republicans wouldn’t do the same if the shoe were on the other foot — they’ve spent the past two years requesting every investigative document under the sun.”

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