I&I Editorial

‘We’ve talked for a long time about approaching a constitutional crisis. We are now in it.”

That was House Judiciary Chairman Jerrold Nadler on Wednesday.

When reporters asked House Speaker Nancy Pelosi on Thursday if she agreed with Nadler’s assessment, her response was that she does, “because the administration has decided that they’re not going to honor their oath of office.”

What neither Nadler nor Pelosi did say, however, is the “crisis” the country is now in has been engineered entirely by Nadler and his fellow Democrats.

Consider: At this very moment, there is a virtually redaction-free version of the Mueller report available to Nadler and other top Democrats. In this version, supplied by the Justice Department in deference to Democrats’ demand for more transparency, the sum total of the redaction in Volume II of the Mueller report — the part Democrats say they are most interested in because it deals with obstruction of justice — is two full lines of text and seven partial lines of text.

That document is sitting in a secure room in the House. Yet not a single Democrat has bothered to look at it.

In fact, the Democrats are purposely avoiding reviewing it, for fear that it would undermine their case for still more disclosures.

In a letter to Nadler, Assistant Attorney General Stephen Boyd said that the fact that Democrats refuse to examine this almost entirely unredacted version of the report “naturally raises questions about the sincerity of the committee’s interest in and purported need for the redacted material.”

Indeed, it does.

Meanwhile, Nadler knows full well that complying with his demand for millions of pages of additional documents — including secret grand jury proceedings — would itself be illegal.

The Judiciary Committee’s ranking Republican, Doug Collins, made it clear: the subpoena “commands the department to provide Congress with millions of records that would be plainly against the law to share because the vast majority of these documents came as a result of nearly 2,800 subpoenas from a grand jury that is still ongoing.”

Justice Department spokeswoman Kerri Kupec added that Attorney General William Barr “could not comply with the House Judiciary Committee’s subpoena without violating the law, court rules, and court orders, and without threatening the independence of the department’s prosecutorial functions.”

So far as we know, no Democrat has credibly claimed otherwise.

In other words, Nadler is declaring a constitutional crisis because Barr won’t turn over documents that, if Barr did relinquish them, would result in Nadler’s accusing him of breaking the law.

Nadler claims that releasing all grand jury information “has occurred in every similar investigation in the past.”

USA Today tries to make this case as well, saying that “in investigations into Presidents Richard Nixon and Bill Clinton, judges ordered the release of grand jury evidence because the public interest outweighed witness privacy.” But in both cases, the House was pursuing impeachment of those presidents.

Even then it was considered an extraordinary exception. As the Congressional Research Service reported:

“The long-established rule of grand jury secrecy is enshrined in Federal Rule of Criminal Procedure 6(e), which provides that government attorneys and the jurors themselves, among others, ‘must not disclose a matter occurring before the grand jury.'”

The CRS goes on to say that “no exception to the general rule of secrecy explicitly authorizes disclosure of grand jury matters to Congress, either by agreement or pursuant to a congressional subpoena.”

Even in the case where Congress is demanding an exception on access to grand jury proceedings as part of an impeachment action, the CRS report explains, “a committee seeking court-authorized disclosure on the basis of this exception must establish a ‘particularized need’ for the materials at issue, which requires a showing that the need outweighs the public interest in secrecy.”

Nadler hasn’t shown any “particularized need” for this data dump request, nor has he made the case that there’s any public interest involved, other than his own party’s determination to keep the Trump administration bottled up in endless investigations. In fact, Democrats are busily downplaying any plans to impeach Trump.

Democrats portray this is a battle against an imperialistic administration. But when the Justice Department weighed in on Congress’ access to grand jury testimony three decades ago (in response to a bill that would have made it easier for lawmakers to get their hands on grand jury materials) here’s what it concluded:

“Because the Executive alone is entrusted with the power to enforce the laws, the Executive alone should make the day-to-day decisions as to whether the release of law enforcement materials to Congress would interfere with its prosecutorial discretion. Independent access by Congress to grand jury materials without the consent of the Department of Justice would seriously endanger grand jury secrecy and thereby weaken the grand jury as an institution.”

In short, what Nadler is doing is nothing more than a fishing expedition — one designed to create a crisis. Since the trumped-up Russia collusion charges amounted to nothing, and Mueller couldn’t adequately make a case for obstruction of justice, Nadler apparently hopes he can find something, anything, in the millions of pages of documents, so that he can keep the Democrats’ drumbeat against Trump going.

Nadler himself made his true intentions plain days after the 2016 election, when he declared, “We cannot wait four years to vote Mr. Trump out of office. We must keep our eyes on two important goals: depressing Trump’s public support and dividing the Congressional GOP from him and from each other.”

Nadler later refused to go to Trump’s inauguration because, in his mind, the election was “illegitimate.”

Yes, there is a constitutional crisis here. It involves one party using every means at its disposal to overturn a legitimate presidential election more than two years after the fact.

— JM

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