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Commentary: If Congress wants the unreformed Mueller report, here's how to get it



The Justice Department announced that it would present the report of special advocate Robert Mueller to Congress and the public Thursday morning, but with the suppression of information on the grand jury (and other categories). of information) that will leave innumerable gaps in our understanding of what Mueller has revealed. Many commentators have suggested that the only mechanism for the Congress to obtain an unredacted report is to launch a formal impeachment investigation – a blind step with high political risks for congressional Democrats and the whole of the United States. left.

This unpleasant choice seemed to result from the recent decision of the Columbia District Court of Appeal, in McKeever v. Canada. Barr (2-1), according to which the courts did not have the "inherent power" to order the disclosure of documents submitted to the grand jury. The six exceptions describing when such a document may be released must be known – exceptions that are defined in rule 6 (e) of the Federal Rules of Civil Procedure.

One of these six is ​​disclosure "preliminary to a court proceeding or as part of a court proceeding". And while this may sound unnatural, several courts have ruled – and the Supreme Court of Canada circuit in McKeever has expressly stated – that the "judicial process" within the meaning of the rule includes a congressional indictment.

He suggested that the Chamber would be entitled to all documents – unredacted – only if it had first launched a formal dismissal investigation. And because the Democratic leaders seem reluctant, for political reasons, to take this step, the possibilities of proceeding under this exception – the only known way to obtain the unredacted report – seemed to be blocked.

But this is not correct. In fact, the Congress has an immediate remedy for requesting the unredacted report under the exception for "court proceedings" without having to open an imputation inquiry.

How do we know? Well, for starters, we do not need to look any further than the Starr inquiry into President Bill Clinton and the impeachment process that follows in Congress. In September 1998, when the House initiated an impeachment investigation, independent lawyer Kenneth W. Starr sought and obtained an order from the Federal District Court to deliver his report to Congress, including voluminous documents. by a grand jury. The order granting the court's application expressly provided that it constituted an order for the purposes of the "judicial process" exception in the federal rules.

It is only after assimilating Starr's report, and on the basis of that report, that the Chamber decided to initiate a dismissal procedure.

The necessary conclusion of the previous Starr is that "preliminary to" covers the circumstances in which Congress requests a report to determine in the first place whether or not to initiate an impeachment proceeding. It follows that the House does not need to initiate an official imputation investigation to obtain the unredacted report.

The Attorney General and Georgian Representative Douglas Collins, a Republican on the Judiciary Committee of the House, suggested that almost everything in Starr's report was unrelated to the current situation as the latter was an independent lawyer governed by a statutory regime different from that of Mueller. Like, of course, he was there. But what? In response to the Starr motion, the court stated that its order applied to Rule 6 (e); in other words, the transmission of grand jury documents was appropriate because the Congress needed them to determine whether or not to open a formal impeachment inquiry. It's hard to see how Collins, Barr or the Department of Justice could argue a valid argument for support.

Indeed, nothing in the Independent Counsel Act governing Starr's investigation purports to suspend or derogate from the Federal Rules of Civil Procedure, and it would be a bizarre legislative scheme that would do so. On the contrary, the law gave the independent lawyer the same powers with regard to the grand jury as the Attorney General or, consequently, the Attorneys General of the Department of Justice.

And there is a much broader principle at play here. The Justice Department really has no reason to believe that Congress, a co-ordinated branch, needs material to determine whether to charge, let alone require that it first open a formal investigation. Clearly, as in the case of the Starr Report, the Mueller Report is an indispensable document that Congress needs to consider in deciding whether to take another official step towards impeachment.

The principle is analogous to the argument successfully advanced by the Trump administration in the Trump case v. Hawaii, namely that it was inappropriate to exclude the grounds invoked to justify the President's immigration order, as dubious as they may appear, in light of the proclamations of the president on the election campaign. .

A wide range of Supreme Court decisions endorse a similar principle of deference to Congress, which is after all a co-equal branch. Therefore, if Congress claims in good faith that it needs the Mueller report to fulfill its constitutional obligation by deciding to remove the president, there would be nothing left. The request complies with the letter of Rule 6 (e) and with the spirit of the basic constitutional structure.

The Judiciary Committee of the House should ask the district court to issue the unedited Mueller report without delay, as this is a "preliminary or ancillary review of a judicial proceeding" within the meaning of Rule 6 e). Leave it to the Department of Justice to argue before the court and the country that the legal principles that applied to Starr were no longer in effect in 2019.

Harry Litman
Harry Litman

Harry Litman, a columnist contributing to the Washington Post, is a former US Attorney and Deputy Attorney General. He teaches Constitutional Law and National Security Law at the Law School of the University of California at Los Angeles and the Department of Political Science at the University of California at San Diego.


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