Key House Democrats said last week their investigation into President Trump essentially has become an impeachment inquiry, as they hope to persuade a federal court to approve their request to see secret grand jury information.
Legal analysts say it’s a stretch.
Judiciary Committee Chairman Jerrold Nadler on Friday led Democrats in filing a lawsuit to get a look at the grand jury information that was stripped out of the special counsel’s report sent to Capitol Hill.
The Justice Department argues the information cannot be disclosed without a court order, and even then the circumstances under which it can be shared are heavily restricted. One exception is a judicial proceeding.
Mr. Nadler says his ongoing series of hearings is just such a circumstance, arguing it amounts to “the preliminary stages” of an impeachment proceeding — which at least one court has found is a viable judicial proceeding.
“The very purpose of such an investigation is to determine whether to recommend that the House vote to impeach the accused party, resulting in a trial in the Senate,” Mr. Nadler’s lawyers wrote in their filing.
Mr. Nadler told reporters the committee’s probe is “in effect” the same as an impeachment inquiry.
But some of his committee members were more direct.
“From my personal standpoint, I would say we’re in an impeachment investigation,” said Rep. Jamie Raskin, Maryland Democrat.
Sam Dewey, a lawyer at McDermott Will & Emery who used to lead congressional investigations, said that’s probably not good enough.
“They can’t have one member stand at a press conference and say, ‘This is an impeachment inquiry,’” Mr. Dewey said. “I just don’t see that. They have to do something beyond that.”
He said the trouble with Mr. Nadler’s argument is where to draw lines.
“In theory, anything is preliminary to a judicial proceeding. How far removed from a potential trial must it be for their argument to make sense?” Mr. Dewey said
During Watergate, one federal judge approved disclosing grand jury information to the House Judiciary Committee as it targeted President Richard Nixon.
But a federal appeals court in Washington, D.C., earlier this year ruled that judges are severely restricted in their ability to release grand jury information.
Andrew McCarthy, a former federal prosecutor, said he doesn’t believe the House’s ongoing investigations would succeed under either of those court precedents.
“This is not a law enforcement investigation,” Mr. McCarthy said. “It is a congressional hearing.”
Mr. Dewey said Democrats could argue to the courts that they have fundamental oversight powers that give them the right to see secret materials.
“There is Supreme Court law that says the inherent investigation powers of Congress are inalienable,” he said.
Mr. McCarthy said Congress also could try to change the law to make the release of grand jury information to Capitol Hill legal.
The Democrat-controlled House would likely approve that bill, but then it would have to pressure the Republican-led Senate to go along and to get Mr. Trump to sign it into law.
Mr. McCarthy said that’s possible. Anyone opposing the measure could face allegations of participating in a coverup.
But he predicted Democrats wouldn’t push to change the law because their bid is political theater rather than a serious legal challenge.
“They know they are going to court with a frivolous petition, but they want to look their base in the eye and say they are fighting here,” he said. “This idea that they are doing impeachment but they are not doing impeachment and they want to pretend legally it is impeachment but continue to tell the public we are not seeking impeachment won’t work. And if I was a judge I’d be angry about them using the court that way.”
• Jeff Mordock can be reached at firstname.lastname@example.org.
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