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Tue Jun 11, 2019, 11:04 AM

An impeachment inquiry ISN'T the only way for the House to get secret grand jury material, after all

It’s been practically a mantra on DU, in the media, and elsewhere that Democrats MUST start impeachment because that's supposedly the only way for the House to obtain grand jury material.

Well, today, the House is scheduled to vote to authorize the Judiciary Committee Chairman to petition the court to obtain grand jury materials, on the basis that the Judiciary Committee is conducting hearings that are “preliminary” to a judicial proceeding and, therefore, a judge can disclose grand jury materials to them for this purpose. They actually quote the rule’s language in the bill to justify their request to obtain the materials even though an impeachment inquiry hasn’t been opened. https://www.govinfo.gov/content/pkg/BILLS-116hres430ih/xml/BILLS-116hres430ih.xml

This is exactly the basis described by a DUer who’s tried to push back on the “impeachment’s the only way” fallacy, only to be met with uniformed arguments, hostility, alerts, attacks on her expertise, credibility, motives and even the length of time she’s been on DU.

It’s nice to see her (and others of us who read the law the same way - as it’s written) proven correct, by no less than Chairman Nadler, the Judiciary Committee and the House.

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Reply An impeachment inquiry ISN'T the only way for the House to get secret grand jury material, after all (Original post)
EffieBlack Tuesday OP
wryter2000 Tuesday #1
Me. Tuesday #2
EffieBlack Tuesday #3
StarfishSaver Tuesday #4
stopdiggin Tuesday #5
Trumpocalypse Tuesday #6
watoos Tuesday #7
StarfishSaver Tuesday #8
watoos Tuesday #10
StarfishSaver Tuesday #13
watoos Tuesday #14
StarfishSaver Tuesday #16
EffieBlack Tuesday #17
StarfishSaver Tuesday #20
Nuggets Wednesday #27
StarfishSaver Wednesday #31
EffieBlack Tuesday #9
watoos Tuesday #12
EffieBlack Tuesday #15
brer cat Tuesday #11
mcar Tuesday #18
StarfishSaver Tuesday #19
FBaggins Wednesday #21
StarfishSaver Wednesday #22
FBaggins Wednesday #23
StarfishSaver Wednesday #24
EffieBlack Wednesday #25
emmaverybo Wednesday #30
StarfishSaver Wednesday #32
BeyondGeography Wednesday #26
StarfishSaver Wednesday #29
emmaverybo Wednesday #28
EffieBlack Thursday #33

Response to EffieBlack (Original post)

Tue Jun 11, 2019, 11:10 AM

1. This is what Jill Wine-Banks has been saying

And at one point, Lawrence Tribe publicly agreed with her. Then, everyone went back to saying you need impeachment.

Plus, Barr is turning over material, too.

Proud to be the first rec on this thread.

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Response to EffieBlack (Original post)

Tue Jun 11, 2019, 11:11 AM

2. This Was Always An Option

and was referenced by some of the prosecutor pundits but no one was really listening because it didn't fit the script. That would be you Joy Reid and Larry O'Donnell...among others.

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Response to Me. (Reply #2)

Tue Jun 11, 2019, 11:18 AM

3. Rachel Maddow jumped on this bandwagon for a couple of days, but then jumped off when knowledgeable

people explained it to her. To her great credit, Rachel is willing to learn and shapes her opinions and coverage to match the facts and information and not the other way around.

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Response to EffieBlack (Original post)

Tue Jun 11, 2019, 11:33 AM

4. ...

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Response to EffieBlack (Original post)

Tue Jun 11, 2019, 11:35 AM

5. Thank you

Always appreciate an informed opinion. And a bit of push back against some of the more shrill is probably in order. I guess now we go back to IMPEACH NOW, because the "Constitution demands it!"

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Response to EffieBlack (Original post)

Tue Jun 11, 2019, 11:37 AM

6. Don't confuse them with facts

LOL

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Response to EffieBlack (Original post)

Tue Jun 11, 2019, 11:38 AM

7. This was discussed months ago

When Democrats didn’t act it was confusing.
So the House is going to vote to give Nader the authority to petition the judge for the info.
What’s to stop Barr/Trump from filing an appeal in the courts?
I hope Dems can get the info this way, that doesn’t refute the fact that the best way to get the grand jury info is from an impeachment hearing.

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Response to watoos (Reply #7)

Tue Jun 11, 2019, 11:41 AM

8. They can appeal whether it's an impeachment or not

The process is exactly the same.

You keep saying "the best way to get the grand jury info is from an impeachment hearing." On what are you basing that assertion?

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Response to StarfishSaver (Reply #8)

Tue Jun 11, 2019, 12:11 PM

10. Listening to dozens of Constitutional scholars,

To start with, Barr himself said that he would release the grand jury testimony for an impeachment hearing.

The seriousness of an impeachment hearing bolsters the argument for the courts to be expedient. Once an impeachment hearing is opened up and there is evidence in the grand jury testimony to prove that impeachment is warranted, it would be obstructive to the impeachment to withhold evidence.

An impeachment hearing carries more clout with the courts, that's just common sense, and people a lot smarter than me have said the same. The process should be the same if we didn't have a corrupt AG obstructing everything.

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Response to watoos (Reply #10)

Tue Jun 11, 2019, 12:38 PM

13. This is not a constitutional issue - it's a matter of statutory interpretation



Barr doesn't have the authority to release the material to anyone unless a court orders him to, so his supposed "agreement" doesn't mean a thing.

Your belief that an impeachment hearing is so important that it lead a court to do something it otherwise wouldn't do also doesn't mean much in this context, because it's just a supposition on your part not based on the law or precedent.
Moreover, while the law has made a distinction between judicial proceedings (which includes an impeachment) and regular oversight hearings, it does NOT make a distinction between the proceedings for which Nadler is seeking the material and judicial proceedings for this purpose. In fact, the law does just the opposite: it puts them in the exact same category.

The law permits a judge to release grand jury materials preliminarily to or in connection with a judicial proceeding. The statute is written to mean that a hearing preliminary to impeachment - which is what Nadler's seeking the materials for - is given the same weight and importance under the law as impeachment. The law makes no distinction between the two types of proceedings.

In the few instances that it's come up, an impeachment proceeding carried more weight than a standard oversight hearing. But as far as I can find, no court has ever held that an impeachment proceeding carries greater weight than a proceeding preliminary to impeachment. And both "common sense" and basic established statutory interpretation leads to the conclusion that the fact that the statute's drafters included the two types of proceedings in the same clause without in any way differentiating between the two or prioritizing one over the other means that they are to be treated equivalently for the purpose of this exception.

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Response to StarfishSaver (Reply #13)

Tue Jun 11, 2019, 12:56 PM

14. See my link below,

Nadler must convince a judge that the grand jury information is necessary for judicial purposes, much easier for him to make the argument under an impeachment hearing than a regular legislative committee.

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Response to watoos (Reply #14)

Tue Jun 11, 2019, 01:06 PM

16. Please read Effie's response

She explains well why your source doesn't support your argument.

Among other things, Nadler doesn't have to convince a judge that the material is for "judicial purposes." He has to show it's to be used "preliminarily to or in connection with a judicial proceeding." The bill states that this is the purpose, so he'll be able to establish that easily.

The House is not seeking the grand jury materials for oversight purposes but for purposes preliminary to or in connection with a judicial proceeding. That makes all the difference in the world and is why your source and it's sources are inapplicable here (since they focus on why an impeachment proceeding carries more weight than an oversight hearing).

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Response to StarfishSaver (Reply #16)

Tue Jun 11, 2019, 02:17 PM

17. Sigh ...

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Response to EffieBlack (Reply #17)

Tue Jun 11, 2019, 06:33 PM

20. All we can do is try.

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Response to watoos (Reply #10)

Wed Jun 12, 2019, 04:35 PM

27. Of course Barr himself said he would release

information.

1) They want Pelosi to start the process, it gives Trump and the GOP the best chance of getting away with these crimes.

2) He either won’t release or will release will release a pile of redacted to death documents.

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Response to Nuggets (Reply #27)

Wed Jun 12, 2019, 04:52 PM

31. Barr doesn't have the power to release the material without a court order

He didn't say he would release it. He promised to join the Democrats in asking the court to order they be released.

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Response to watoos (Reply #7)

Tue Jun 11, 2019, 12:03 PM

9. How do you know the "best" way to get this is through an impeachment hearing?

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Response to EffieBlack (Reply #9)

Tue Jun 11, 2019, 12:28 PM

12. There is a difference between a

legislative committee and an impeachment committee.

For Nadler to get grand jury information he must convince a judge that the information is needed for "judicial purposes," and an impeachment hearing would make Nadler's argument much more relevant.

Here is an excellent explanation of why an impeachment hearing carries more weight than a regular legislative committee. It explains why an impeachment hearing carries more weight to get grand jury information.

https://www.lawfareblog.com/what-powers-does-formal-impeachment-inquiry-give-house

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Response to watoos (Reply #12)

Tue Jun 11, 2019, 12:59 PM

15. Please stop arguing, You don't know the law and don't understand the process

And citing this blog only further proves how little you understand what’s going on here.

The blog you cited and the case it refers to correctly explain there’s a difference between Congress’ regular legislative or oversight activity and the proceedings described in Rule 6e that allow a court to release grand jury materials “preliminarily to or in connection with judicial proceedings.” The courts have ruled that regular oversight hearings aren’t preliminary to or actual judicial proceedings and, therefore, don’t qualify as exceptions to the grand jury secrecy rule.

BUT Chairman Nadler and the authorization the House is voting on today make clear that these Judiciary Committee hearings on the Mueller Report aren’t oversight hearings, but are preliminary to judicial proceedings - whether impeachment or other judicial activity. That means they aren’t to be treated the way courts have treated regular oversight hearings in the past when considering whether to release grand jury information. They are to be treated the same way as impeachment hearings for the purpose of this statute.

You’re incorrect that Nadler has to show the information is needed for “judicial purposes.” He has to show that he’s requesting them for use “preliminarily to or in connection with a judicial proceeding.” Because the Committee has established and the House will establish in the bill it passes this afternoon that these hearings are “preliminary to” judicial proceedings (including possible impeachment consideration) he will easily meet this burden (especially since courts give Congress great deference when defining their own purposes).

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Response to EffieBlack (Original post)

Tue Jun 11, 2019, 12:23 PM

11. Thank you.

You and another DUer have been very helpful. I appreciate you both.

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Response to EffieBlack (Original post)

Tue Jun 11, 2019, 03:38 PM

18. KR

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Response to EffieBlack (Original post)

Tue Jun 11, 2019, 04:27 PM

19. The House just passed the bill

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Response to EffieBlack (Original post)

Wed Jun 12, 2019, 09:56 AM

21. They have to actually GET them before this is evidence that impeachment wasn't the only way

Agreeing to grant the power to ask a court doesn't really demonstrate anything. No more so than the fact that the DOJ will ask the court not to release them.

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Response to FBaggins (Reply #21)

Wed Jun 12, 2019, 10:10 AM

22. Impeachment only gives them the right to ask. It doesn't guarantee them anything

And this request is made under the same exception that applies to impeachment - as distinguished from regular oversight, which doesn't give them standing to make the request - so for all legal and practical purposes, it's the same thing.

But when they get the materials - which is very likely - I have a feeling some people will claim that STILL isn't good enough.

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Response to StarfishSaver (Reply #22)

Wed Jun 12, 2019, 10:21 AM

23. You're assuming that EffieBlack's post is accurate

It isn't.

Nowhere in the resolution does the House establish that the hearings going forward are preliminary to a judicial proceeding..

Nor could they. The House doesn't have the power to declare something a judicial proceeding (hint... there's a whole 'nother branch of government for that). Arguably (and with court precedent) an actual impeachment trial in the Senate is a judicial proceeding and therefore an impeachment inquiry is arguably preliminary to that. But House hearings outside of impeachment either are or are not covered by the exception. It's laughable to think that the House has the power to add a new category of hearings that it says qualify.

Note that all the resolution does is grant the chair the ability to act on behalf of the House in asking the courts. This merely speeds up the process... it doesn't change the rules on which that process rests.

That the chair of the Committee on the Judiciary of the House of Representatives is authorized, on behalf of such Committee, to initiate or intervene in any judicial proceeding before a Federal court—

(1) to seek declaratory judgments and any and all ancillary relief, including injunctive relief, affirming the duty of—

(A) William P. Barr, Attorney General, to comply with the subpoena that is the subject of the resolution accompanying House Report 116-105; and

(B) Donald F. McGahn, II, former White House Counsel, to comply with the subpoena issued to him on April 22, 2019; and

(2) to petition for disclosure of information regarding any matters identified in or relating to the subpoenas referred to in paragraph (1) or any accompanying report, pursuant to Federal Rule of Criminal Procedure 6(e), including Rule 6(e)(3)(E) (providing that the court may authorize disclosure of a grand-jury matter “preliminarily to... a judicial proceeding”).

Resolved, That the chair of each standing and permanent select committee, when authorized by the Bipartisan Legal Advisory Group, retains the ability to initiate or intervene in any judicial proceeding before a Federal court on behalf of such committee, to seek declaratory judgments and any and all ancillary relief, including injunctive relief, affirming the duty of the recipient of any subpoena duly issued by that committee to comply with that subpoena. Consistent with the Congressional Record statement on January 3, 2019, by the chair of the Committee on Rules regarding the civil enforcement of subpoenas pursuant to clause 8(b) of rule II, a vote of the Bipartisan Legal Advisory Group to authorize litigation and to articulate the institutional position of the House in that litigation is the equivalent of a vote of the full House of Representatives.

Resolved, That in connection with any judicial proceeding brought under the first or second resolving clauses, the chair of any standing or permanent select committee exercising authority thereunder has any and all necessary authority under Article I of the Constitution.

Resolved, That the chair of any standing or permanent select committee exercising authority described in the first or second resolving clause shall notify the House of Representatives, with respect to the commencement of any judicial proceeding thereunder.

Resolved, That the Office of General Counsel of the House of Representatives shall, with the authorization of the Speaker, represent any standing or permanent select committee in any judicial proceeding initiated or intervened in pursuant to the authority described in the first or second resolving clause.

Resolved, That the Office of General Counsel of the House of Representatives is authorized to retain private counsel, either for pay or pro bono, to assist in the representation of any standing or permanent select committee in any judicial proceeding initiated or intervened in pursuant to the authority described in the first or second resolving clause.

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Response to FBaggins (Reply #23)

Wed Jun 12, 2019, 12:31 PM

24. The resolution doesn't need to explicitly "establish that the hearings going forward are preliminary

Last edited Wed Jun 12, 2019, 05:04 PM - Edit history (1)

to a judicial proceeding." That's not the point of the resolution.

The resolution authorizes the chair to "petition for disclosure of information regarding any matters identified in or relating to the subpoenas referred to in paragraph (1) or any accompanying report, pursuant to Federal Rule of Criminal Procedure 6(e), including Rule 6(e)(3)(E) (providing that the court may authorize disclosure of a grand-jury matter “preliminarily to... a judicial proceeding”)" - meaning the chair can now go to court to seek grand jury material under the Rule 6(e) exception that permits disclosure of such material "preliminarily to... a judicial proceeding."

Nadler has already stated that the hearings are not just for oversight but also to explore "constitutional remedies." And courts are very deferential to Congress' determination of the purpose for which it is seeking material (see, e.g., Trump v. Committee on Oversight and Reform ), so the hearings fall squarely within the exception to the grand jury secrecy laws. And the fact that it gives the chair the authority to seek materials under the Rule 6(e) language in connection with the Barr and McGahn subpoenas and other related matters "preliminarily to ... judicial proceedings" makes clear that the House views these hearings as falling within this definition.

Neither I nor the OP claimed the resolution "changed the rules on which that process rests." We correctly explained that the resolution authorizes the chair to go to court under the rules that some people keep incorrectly claiming apply only to impeachment inquiries.

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Response to FBaggins (Reply #23)

Wed Jun 12, 2019, 04:13 PM

25. My OP IS accurate

And nothing you’ve said in any way contradicts what I wrote.

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Response to StarfishSaver (Reply #22)

Wed Jun 12, 2019, 04:50 PM

30. I do too. Never mind. You can please some of the people all of the time, but not all of the peeps

all of the time. Many of us so appreciate your clear explanations and argument, and that in the face of ignorance, willful ignorance, you manage unflappably persistence.

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Response to emmaverybo (Reply #30)

Wed Jun 12, 2019, 04:53 PM

32. Thanks, emmaverybo

That's very kind of you.

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Response to EffieBlack (Original post)

Wed Jun 12, 2019, 04:22 PM

26. No one's saying it's the only way

Some very enlightened people are saying it's the best way.

There’s no doubt that congressional oversight and investigative power is at its zenith in the context of an impeachment investigation,” Rep. Jamie Raskin (D-MD) told Vox. “The reason for that is impeachment is an enumerated power of Congress. ... It appears four different times in the Constitution.”

https://www.vox.com/2019/6/12/18661820/democrats-impeachment-inquiry-pelosi-nadler-trump

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Response to BeyondGeography (Reply #26)

Wed Jun 12, 2019, 04:47 PM

29. A whole lot of people both in the media and on DU are saying it's the only way.

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Response to EffieBlack (Original post)

Wed Jun 12, 2019, 04:46 PM

28. Thank you for all your work to explain to us how and why impeachment is not the only way

to get these materials. Unfortunately, getting the materials is not enough for IMPEACH NOW-ers.
But for many who want to be educated in what the House is doing to expose the American people
to Trump’s gross misconduct and potential crimes, your meticulous explanations give both understanding on the legal front and hope.


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Response to emmaverybo (Reply #28)

Thu Jun 13, 2019, 09:46 PM

33. Thanks for this

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