One of the most important judicial tribunals in the United States has scheduled a doubleheader for the ages to take place just after New Year’s Day: Two cases that bear directly on the historic question of whether the incumbent president of the United States should be removed from office.
At stake is information that congressional Democrats heretofore have told us is vital. Their impeachment inquiry, cross their hearts, is not a political stunt with a predetermined outcome. No, no, it is a solemn, objective commitment to follow the facts wherever they lead.
Which means they have to try to get all the facts, right?
Perhaps not. A more pointed question: Are Democrats in such a mad rush to brand President Donald Trump with the stigma of impeachment that they will not wait for the judiciary to resolve legitimate questions about their access to evidence and testimony from salient witnesses? For rulings on weighty legal issues that Democrats themselves have provoked, with threats to hold executive officials in contempt of Congress?
The U.S. Court of Appeals for the D.C. Circuit in Washington has agreed to hear oral argument on Friday, Jan. 3, in the two cases, both appeals from decisions by the federal district court.
The first involves Judge Beryl Howell’s Oct. 25 ruling that the Justice Department must disclose to the House Judiciary Committee the grand jury materials relevant to the Mueller investigation. These are said to be essential to the impeachment inquiry’s consideration of possible obstruction allegations against the president — notwithstanding that special counsel Robert Mueller declined to recommend obstruction charges, and the Justice Department concluded that the evidence was insufficient to establish them.
The second case concerns a subpoena the same House committee served on former White House counsel Don McGahn. On Nov. 25, Judge Ketjani Brown Jackson ruled that McGahn must appear, despite Trump administration claims that, as a senior advisor to the president, he is immune from testifying.
This, too, relates to the House impeachment inquiry’s consideration of obstruction charges. The precedential effect of the ruling, moreover, bears on the House’s access to other key witnesses, such as Mick Mulvaney, John Bolton and Rudy Giuliani, respectively, the president’s acting chief of staff, his former national security adviser, and his private lawyer. They are central to the impeachment inquiry’s Ukraine probe, in which Democrats claim that the president may have committed “bribery” by pressuring Kyiv to investigate Joe Biden, his potential Democratic opponent in the 2020 election.
The lower court rulings, both rendered by appointees of President Barack Obama, are controversial.
On the grand jury issue, there is nothing in the governing rule that permits disclosure of grand jury testimony and evidence to Congress. In its own decision just a few months back (in McKeever v. Barr), the D.C. Circuit held that Justice Department prosecutors may disclose materials only if the rule provides an express exception to grand jury secrecy.
Judge Howell’s ruling appears to fly in the face of that precedent. She attempts to rationalize it by analogizing impeachment to a court case. The exceptions in the grand jury secrecy rule permit disclosure in connection with judicial proceedings, as well as disclosure to state, military or foreign investigators who are conducting investigations that could lead to judicial proceedings (i.e., prosecutions in court).
By my lights, this is a specious analogy. Impeachment is not a judicial proceeding; it is a political matter. In a presidential impeachment, one political branch (Congress) considers stripping power from the head of the other political branch. Impeachment is not a legal controversy conducted by the judicial branch, which our system intentionally insulates from politics.
Furthermore, the grand jury secrecy rule is statutory. Congress enacted it, and Congress could amend it, adding an exception that gives Congress access to grand jury materials from a special counsel investigation. The House Judiciary Committee, of all bodies, should not ask a federal court to rewrite Congress’s own rule when the committee itself could be legislating any appropriate changes.
In the McGahn case, Judge Jackson’s ruling is curious. Despite its 118 pages, it manages to avoid the central issue: Must McGahn answer the Judiciary Committee’s questions?
In issuing a subpoena to one of the president’s most senior advisers, the White House’s top lawyer, the committee obviously raises issues of executive privilege and attorney-client privilege. This is why the Trump administration, in reliance on Justice Department policy opinions stretching back decades, took the position that McGahn had immunity from a congressional subpoena. Judge Jackson rejected this immunity claim — relying on a single lower court opinion from over a decade ago, never reviewed by the D.C. Circuit. But she held only that McGahn must physically show up as directed by the committee’s subpoena. Yet, it seems certain that, upon showing up, McGahn would decline to answer many, if not all, of the committee’s questions, citing privilege.
So, what happens then? If he needn’t answer because the privilege claims are valid, what is the point of making him appear? If he must answer, what are the legal rationales for denying privilege claims? Is the president deemed to have waived any privileges by permitting McGahn to be interviewed extensively by the special counsel? If so, does that mean Mulvaney, Bolton and Giuliani (who were not interviewed by Mueller’s staff) may assert privileges to avoid testifying if they are subpoenaed?
These and other closely related questions will be in play when the D.C. Circuit hears these two impeachment inquiry cases on Jan. 3. Manifestly mindful of the momentous stakes, the appellate court has expedited its review and its scheduling of both matters for argument on the same day, right after the holidays, is extraordinary.
But then there’s that other nagging question: Are House Democrats in such a hurry to impeach the president before the 2020 election year begins that they won’t wait for decisions about access to impeachment evidence that they told the courts they needed?
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.