The House Judiciary Committee on Friday is moving to obtain the secret grand jury material from special counsel Robert Mueller’s report in federal court, adding a new front to the Democrats’ expansive legal battles with the Trump administration as they weigh whether to pursue an impeachment inquiry.
The committee also plans to soon file a lawsuit to enforce its subpoena of former White House counsel Don McGahn, who flouted the committee’s subpoena to testify in May under direction from the White House.
The two new court efforts that the House counsel will litigate represent the Judiciary Committee’s next path after special counsel Robert Mueller’s testimony this week as the panel investigates President Donald Trump and wrestles with whether to move forward on impeachment.
House Judiciary Chairman Jerry Nadler, a Democrat from New York, said that the court filing for the grand jury material would make the argument that the House needs to obtain the grand jury material so it can make a decision on whether the House will pursue impeachment.
“Because Department of Justice policies will not allow prosecution of a sitting president, the United States House of Representatives is the only institution of the federal government that can now hold President Trump accountable for these actions,” Nadler said at a press conference Friday, quoting from the planned court filing. “To do so, the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional duty, power of the utmost gravity, a recommendation of articles of impeachment. That duty falls in the first instance to the House Committee on the Judiciary.”
The lawsuit states that “articles of impeachment are under consideration as part of the Committee’s investigation, although no final determination has been made.”
“The Committee seeks key documentary evidence and intends to conduct hearings with Mr. McGahn and other critical witnesses to determine whether the Committee should recommend articles of impeachment or any other Article I remedies, and if so, in what form,” the lawsuit says.
Nadler, who would lead impeaching proceedings if the House pursues them, has been privately lobbying House Speaker Nancy Pelosi that the House should begin an impeachment inquiry, but Pelosi has argued the House needs to obtain the information it’s seeking through the courts to put together the strongest possible argument before making a decision on impeachment.
The legal process could be a lengthy one, however, in the Judiciary Committee’s efforts to obtain grand jury material and McGahn’s testimony.
Democrats are worried that time is running short on the window for impeachment with the 2020 campaign season around the corner, and the court cases could take weeks — if not months or years — to reach a resolution and litigate appeals.
Pelosi told reporters Friday she was not trying to run out the clock on impeachment.
“No I’m not trying to run out the clock. Let’s get sophisticated about this, OK?” Pelosi said. “We will proceed when we have what we need to proceed, not one day sooner. And everybody has the liberty and the luxury to espouse their own position and to criticize me for trying to go down the path in the most determined positive way. Again, their advocacy for impeachment only gives me leverage.”
Rep. Doug Collins, the top Republican on the Judiciary Committee, accused Democrats of “suing for grand jury material to which they have no right.”
“The D.C. Circuit Court reaffirmed earlier this year that judges lack the authority to make exceptions to the rules authorizing access to grand jury material,” the Georgia Republican said. “Democrats want to convince their base they’re still wedded to impeachment even after this week’s hearing, but a baseless legal claim is an odd way to show that.”
The House is currently fighting a number of other court battles with Trump and his administration, including their efforts to obtain the President’s tax returns and subpoena his banks and accounting firms.
Democrats say the grand jury material that’s redacted from the Mueller report will give them the full picture of what Mueller’s investigation uncovered.
Grand jury material is considered protected, and a court order is required to release it. Attorney General William Barr has opposed the notion of going to court to make the grand jury material public, and Republicans have accused Democrats of asking Barr to break the law when they asked him to help them obtain a court order for the release of the grand jury information.
Ahead of the lawsuit Friday, the House Judiciary Committee sent its members a memo outlining how the committee would handle and protect grand jury information.
Democrats argue they are entitled to the grand jury material because the law allows a judge to share grand information “preliminary to or in connection with a judicial proceeding.” Nadler has said that his committee’s investigation should apply because it’s being conducted to determine whether to begin an impeachment inquiry, which is considered a judicial proceeding.
But the courts may be skeptical of that argument short of the House actually entering into a judicial proceeding, which is one of the arguments Nadler has privately made to Pelosi to begin an inquiry, CNN has previously reported.
The House Intelligence Committee has also indicated it wants to see Mueller’s grand jury material, and could try to obtain it under a different statute in the law that allows sharing of grand jury information with intelligence or national security officials if the matter involves foreign intelligence agencies.
Nadler has said that the committee will also file suit to enforce its subpoena of McGahn, who was a key witness in the Mueller report.
The committee wants his testimony to help them detail what Mueller uncovered in his obstruction investigation, but McGahn ignored their subpoena and did not appear at a May hearing under direction from the White House.
The White House has claimed that McGahn has “absolute immunity” from testifying before Congress as a senior adviser to the President, an executive privilege claim that Democrats have rejected.
The House voted in May to authorize the court battle against McGahn rather than moving to hold him in contempt of Congress for violating the subpoena.