Congress does not necessarily have to open a formal impeachment inquiry to exercise and obtain the benefits of its impeachment power. That proposition should inform the debate raging within the halls of Congress and elsewhere about whether to formally initiate an impeachment inquiry against President Donald J. Trump. There may be ample justification to do so in light of President Trump’s actions, but there’s reason to doubt that this step is necessary procedurally to enhance the investigatory powers that Congress is now seeking to vindicate through the courts.

A court petition brought by the House Judiciary Committee on Friday—to obtain grand jury material from the Mueller investigation—brings these issues to the fore.

The claim, advanced by some commentators, that Congress must take the step of a formal impeachment inquiry to acquire greater investigatory powers may have the unintended consequence of weakening Congress’s hand. Commentators, Congress, the Executive Branch, and, in particular, the courts, should instead recognize that the House has a strong claim that it is already operating in the zone of its impeachment authority.

The key argument that has been put forward in favor of opening a formal impeachment inquiry is that Congress would be able to claim much greater investigatory powers compared to regular oversight hearings. More specifically, this step would strengthen Congress’s hand against the administration’s efforts to withhold grand jury material in the Mueller investigation and against the administration’s invocation of executive privilege and absolute immunity. Mike Stern’s influential essay at Just Security (“How Impeachment Proceedings Would Strengthen Congress’s Investigatory Powers”) makes those points.

We agree that when Congress exercises its impeachment power, it strengthens Congress’s investigatory powers versus the Executive Branch. And we acknowledge that formally opening an impeachment inquiry would have that effect. We also note that every step the House takes toward considering impeachment enhances that effect as well. What we emphasize here is that the House does not necessarily have to formally open an impeachment inquiry to obtain some of those advantages, and courts should not require Congress to do so to claim that its powers of impeachment are at stake. Indeed, as a leading impeachment scholar, professor Michael Gerhardt recently told Congress in testimony, the Constitution has no prescribed rules for how the House should consider impeachment and there is a rich history of Committees considering impeachment without a vote to initiate a formal impeachment inquiry. Our point is that when the House operates within this zone of the exercise of its impeachment authority, it may already obtain extra powers of investigation that come with that authority.

In short, the impeachment power is not triggered by an on-off switch of opening an impeachment inquiry. Rather it is a continuum, and in some cases the House may be even more clearly along that continuum—for example if the House Judiciary Committee formally considers drafting Articles of Impeachment (see Greg Sargent’s analysis). This does not necessarily entail a sliding scale such that the greater degree to which the House has proceeded down the continuum, the greater investigatory authorities it obtains. Rather, the greater degree to which the House shows evidence that it has proceeded down that continuum, the more likely it is that courts will recognize the House is acting pursuant to Congress’s impeachment authority and recognize those powerful interests.

Take for example grand jury information. As we explain below, judicial precedents show that courts have been willing to authorize the sharing of grand jury materials for the House to consider for purposes of impeachment prior to the House Judiciary Committee or the House as a body voting to open an impeachment inquiry. Moreover, Congress’s need to obtain the information to decide whether to initiate an impeachment inquiry is “necessary and proper” to Congress’s full exercise of its impeachment power. It would be perverse to require the House of Representatives to take the nation down the disruptive road of impeachment, by initiating an inquiry, in order to access the very information it needs to inform its decision whether or not to do so.

Only under limited circumstances can Congress be said to be within the realm of exercising its impeachment power. A series of actions taken in recent weeks shows that the House has entered that space (See Part IV below).

The House Judiciary Committee’s effort to obtain grand jury materials in the Russia investigation is a good place to start our analysis, as it is critical to Congress’s consideration of impeachment and has been the subject of much commentary.

I. The “impeachment exception” to grand jury secrecy

Grand jury materials are generally kept completely secret, in accordance with Rule 6(e) of the Federal Rules of Criminal Procedure. Those same rules, however, include a list of explicit exceptions. One of those exceptions authorizes courts to order the release of grand jury materials “preliminarily to or in connection with a judicial proceeding.”

What is a “judicial proceeding”? Does impeachment count?

It’s worth noting by comparison that the category “preliminarily to or in connection with a judicial proceeding” has been defined broadly by courts to include police disciplinary boards and disbarment proceedings. It would be ludicrous to think that if President Trump were a lawyer, the federal courts could order the Mueller grand jury information to be turned over to state bar authorities but not to the House Judiciary Committee.

A few months ago, the Court of Appeals for the District of Columbia Circuit took the unusual step of signalling its position on whether impeachment proceedings would count as “judicial proceedings” under Rule 6(e). On April 5, the Court ruled, in McKeever v. Barr, that judges lack a more generalized “inherent authority” to release grand jury information. The McKeever court provided an unusually lengthy footnote, however, reminding Congress of another route to obtaining such information: its own Article I powers as a judicial or quasi-judicial body via impeachment. The court discussed an important Watergate-era precedent also decided by the DC Court of Appeals—Haldeman v. Sirica, 501 F.2d 714 (D.C. 1974)—which permitted the transmission of a grand jury report to the House Judiciary Committee in the course of its impeachment inquiry into President Richard Nixon. The McKeever court read Haldeman as firmly “fitting within the Rule 6(e) exception for ’judicial proceedings.’”

II. When is Congress operating “preliminarily” to a judicial proceeding? When is Congress acting pursuant to its impeachment powers?

There are two ways in which courts may conclude that a request from the House for grand jury materials—preceding or absent a formal impeachment inquiry—meets the definition of a stage that is preliminary to a judicial proceeding.

Option A:

An impeachment inquiry or formal impeachment investigation in the House is a “judicial proceeding.”

The prior stage of the House’s gathering and assessing information is preliminary to that judicial proceeding.

Option B:

A Senate impeachment trial is the “judicial proceeding.”

The prior stage of the House’s gathering and assessing information for the purpose of considering impeachment (regardless of the existence of a formal impeachment inquiry or impeachment investigation) is preliminary to that judicial proceeding.

Significant judicial precedents support the proposition that grand jury material may be shared with the House of Representatives preceding or absent a formal impeachment inquiry. It is not clear whether the judges considered the application of the exception as a form of Option A or B.

On July 7, 1998, a three-judge panel, acting as a Special Division of the D.C. Circuit, issued an order for Independent Counsel Kenneth Starr to share grand jury material with the House of Representatives before the House voted to open an impeachment inquiry. The court stated that its authority was pursuant to the Rule 6(e) exception for releasing matters “preliminarily to or in connection with a judicial proceeding.” However, it was not until three months later, on October 5, 1998, that the House Judiciary Committee voted to begin an impeachment inquiry. (Notably, the House Judiciary Committee’s current Republican minority favorably cites the Special Division decision in support of the proposition that only “the inquiry into the impeachment of a president has been considered preliminary to a judicial proceeding.” Their citation proves the opposite.)

In the Watergate litigation mentioned above, Chief Judge Sirica relied on the common law practice of sharing grand jury materials with the House to initiate consideration of impeachment. His analysis, in order words, did not turn on the fact that the House had already opened an impeachment inquiry into President Nixon. Sirica wrote, “there is convincing precedent to demonstrate that common law practice permits the disclosure here contemplated,” and he explained that Rule 6(e) codifies that common law practice. Sirica added that although such grand jury practice “appears not to have occurred frequently, the precedent is persuasive.” He also cited Jefferson’s Manual of Parliamentary Practice which states that “methods of setting an impeachment in motion” include “charges transmitted from … a grand jury.”

Judge Sirica apparently adopted Option A. He described the House impeachment investigation as “a body that in this setting acts simply as another grand jury.” Notably, the recent decision by the DC Circuit in McKeever also cited this line in Sirica’s analysis to show that the district court was considering the sharing of information to be in accord with the exception for “preliminarily to or in connection with a judicial proceeding.” This line of analysis is also consistent with the 1880 Supreme Court decision (in the case of Kilbourn v. Thompson), where the Court described the House impeachment proceedings as equivalent to the exercise of judicial power:

“The House of Representatives has the sole right to impeach officers of the government, and the Senate to try them. Where the question of such impeachment is before either body acting in its appropriate sphere on that subject, we see no reason to doubt the right to compel the attendance of witnesses, and their answer to proper questions, in the same manner and by the use of the same means that courts of justice can in like cases.”

Regardless of whether one adopts Option A or B, either theory would provide a basis for a court to authorize sharing grand jury information with the House Judiciary Committee.

III. Indicators and limiting principles for when Congress is acting pursuant to its impeachment powers

Clearly not all instances of Congressional oversight of the President, Vice President and civil officers can be considered preliminary to impeachment. Given that the House may, in theory, vote on Articles of Impeachment without the participation of any committee, much less a full inquiry by the Judiciary Committee, the standard for determining when Congress is in the zone of impeachment must allow for some flexibility and consideration of the particular circumstances of a given situation.

We believe that at least four factors will likely be important in determining whether the House and, specifically, the House Judiciary Committee are credibly engaged in investigations preliminary to impeachment (for the purposes of obtaining grand jury material) and pursuant to the House’s impeachment authority (for obtaining other information and testimony in the face of invocations of executive privilege and immunities):

Articles of Impeachment will have been referred to the Committee. Articles of Impeachment will be considered particularly weighty if they are sponsored or co-sponsored by members of the Committee. The requested information relates to the charges in the Articles of Impeachment and those articles allege legitimately impeachable offenses on the basis of substantial evidence. The request for information comes from the Committee in its institutional capacity, which is to say that the request must be supported and voted on by a majority of its members.

Just as other committees may consider impeachment inquires or draft articles of impeachment these criteria may be adapted as needed. The long historical practice, however, of conducting the impeachment process through the House Judiciary Committee as a standing body lends greater weight to its actions when it acts as a body to obtain the information needed in exercise of its impeachment powers.

IV. Crossing into the zone of impeachment powers

Due to recent steps taken by the House, the House Judiciary Committee, and House members, the best assessment is that the House is already acting in exercise of its impeachment authority. First, in June, the House passed a Resolution authorizing the Judiciary Committee to petition the court for Mueller grand jury materials in accordance with the exception for matters “preliminarily to … a judicial proceeding.” The Rules Committee report accompanying the draft resolution explicitly grounded that authorization in the House Judiciary Committee’s ongoing consideration of whether to recommend Articles of Impeachment. Second, the Chair of the Judiciary Committee, Rep. Jerry Nadler, at a hearing on July 12, announced in his opening statement that the Committee is actively considering articles of impeachment as part of its investigation of the Mueller report’s findings. He stated: “With regard to the Committee’s responsibility to determine whether to recommend articles of impeachment against the President, articles of impeachment are under consideration as part of the Committee’s investigation, although no final determination has been made.”

In the 116th Congress, 25 members of the House, including 3 members of the Judiciary Committee, have sponsored or cosponsored Articles of Impeachment or bills authorizing and directing the Committee to investigate whether grounds for impeachment exist. The most recent of these to garner support was House Judiciary Committee member Shelia Jackson Lee’s bill, co-sponsored by fellow Committee members Jamie Raskin and Steve Cohen, as well as five other House colleagues, directing the Committee to investigate the President’s obstruction of justice and abuse of power, charges stemming directly from the Mueller investigation, along with 17 other possible grounds. Currently nearly 100 members of the House have expressed support for impeachment.

It is safe to say the House is already well within the zone of its impeachment powers and may exercise the necessary and proper authorities that come with that power to investigate the President.

[Editor’s note: The House Judiciary Committee’s court petition is now available here.]

Image: House Judiciary Committee Chairman Jerrold Nadler (D-NY) (C) and fellow Democratic members of the committee discussing petition for Mueller grand jury materials (Chip Somodevilla/Getty Images).