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On Wednesday, the Judiciary Committee of the House exceeded its limits by issuing a subpoena to appear before the full report of Special Advocate Robert Mueller on the Russian Crime Case with regard to the 2016 elections.
Attorney General William Barr should publish the Mueller report as soon as possible, as much as possible, because the public has the right to see what all this fuss is about. However, if he determines that certain information contained therein is either classified or subject to the grand jury's confidentiality rules, he is obliged to delete them. Unless Congress passes, and as President Trump signs, a new law removing the grand jury's confidentiality rules, existing laws protecting this secret should prevail legally over the authority of summons. of Congress.
Certainly, the situation is not similar to that of the 1998 inquiry and the possible indictment of then President Bill Clinton. This investigation was not conducted by a special counsel, as was the case for Robert Mueller, but by an independent counsel, Kenneth Starr. The difference is significant.
Under the Independent Lawyers Act, which has since lapsed (and has always been questionable constitutionally anyway), such councils were congressional creatures who reported them. They existed independently of the ordinary lines of authority of the Ministry of Justice and the Executive, and were separated from them. When the Speaker of the House of Representatives, Newt Gingrich, and his company made the foolish decision to immediately post the full Starr report on the Internet, they had all the powers to do so, because Starr's report belonged to them. will.
The special tips are different. The special councils, while enjoying a minimum of separation from the ordinary lines of authority of the Ministry of Justice, nevertheless still form an integral part of the department and the executive branch as a whole. They report to the Attorney General (or his representative) and must respect all the ordinary rules of civil and criminal procedure.
Under the Federal Rule of Criminal Procedure 6 (e), neither the government attorney nor any person can "disclose a case before the grand jury". Exceptions involve disclosure to another federal grand jury or a government prosecutor pursuing another a criminal case under certain circumstances, or to certain national security officers if the information involves foreign intelligence, terrorism or a threat of attack. If the government or a defendant requests it in another court proceeding, the court may also authorize release in the previous proceedings. In the absence of such very limited circumstances, Barr would breach this almost general prohibition and could be punished for contempt of court if he disclosed to Congress any information relating to the grand jury contained in the Mueller report under the Fed. R. Crim. P. 6 (e) (7).
The Chairman of the Judiciary Committee, Jerry Nadler, DN.Y., and the Democrats surely know it, but do not seem to care about the rule of law, the sanctity of the grand jury process or the lack of authorization to indictment in the House. considered a "judicial proceeding" in support of their subpoena.
Democrats do not seek the information of the grand jury "to avoid a possible injustice in another judicial procedure", Douglas Oil Co. c. Petrol Stops Nw., 441 US 211,222 (1979). Nor do they seek information about the grand jury to support impeachment, as the House did not allow this investigation, unlike in 1974 when information about the grand jury was passed to the Judiciary Committee regarding the investigation. from President Richard M. Nixon. (Haldeman c. Sirica, 501 F.2d 714 – D.C. Cir. 1974). Similarly, the indictment procedure of Federal District Judge Alcee Hastings allowed the 11th Circuit to consider these congressional efforts as a "judicial proceeding". The Judiciary Committee of the House could thus assign grand jury documents relating to the indictment of Hastings. (In re Request for access to documents of Grand Jury Grand Jury 81-1, Miami, 833 F.2d 1438 – 11th Cir. 1987).
If Nadler wishes to subpoena the grand jury information contained in the Mueller report, he firstly needs a majority of the House members to authorize the Judiciary Committee to investigate the removal of President Trump.
In a way, it does not seem that President Nancy Pelosi wants to open this Pandora's box, at least not yet.
Quin Hillyer is a senior commentator for the Washington Examiner. James Robertson is a lawyer in Mobile, Ala.
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