An impeachment inquiry has begun

Those eager for the start of an official inquiry by the U.S. House Judiciary Committee into the possible impeachment of President Trump need wait no longer.   

A memorandum, submitted by the committee on July 26 to the U.S. District Court for the District of Columbia and signed by the general counsel of the U.S. House of Representatives, makes clear that such an inquiry has begun.

The memorandum is in support of an application for access to all redactions of grand jury material in the Mueller report, in grand jury materials referenced in the report, and to any grand jury testimony or material directly related to four topics. The topics include the president’s knowledge of Russian interference in the 2016 election, links and contacts of his associates directly or indirectly with Russia, and criminal acts by anyone associated with his administration or campaign.

Under Rule 6(e) of the Federal Rules of Criminal Procedure, a judge may grant access to confidential grand jury material when sought in preparation for, or use in, a judicial proceeding. The committee urges that an impeachment investigation is a judicial proceeding for purposes of this exception to grand jury secrecy.

Then the committee makes clear that it is engaged in just such an impeachment investigation. Its statement is unequivocal: “The Committee seeks Rule 6(e) materials to further its ongoing investigation and assessment of whether to recommend articles of impeachment.”

The committee relies heavily on Haldeman v. Sirica, a decision by the D.C. Circuit Court of Appeals granting the 1974 Judiciary Committee’s impeachment inquiry into Watergate access to grand jury materials. Seeing again the names of Judge John Sirica and Nixon aide Bob Haldeman connects the past and the present vividly.  

The committee urges that it is in the same position as was the House Judiciary Committee during Watergate — when I served on the committee’s impeachment inquiry staff — because the U.S. Department of Justice again takes the position that a president can’t be indicted and only an impeachment inquiry is available to ensure presidential accountability.

A difference between this application and the Haldeman case is that here the full House has not voted a resolution calling on the Judiciary Committee to investigate and recommend whether sufficient grounds exist to impeach. The committee makes a compelling argument, however, based in part on impeachment precedent for federal judges, that such a resolution is not required and that the committee has authority to recommend articles of impeachment on its own initiative.

It will be most interesting to see how the Department of Justice responds to this application. Because the department represents the United States and not just the president, the proper course would be to leave a response to the president’s impeachment counsel, the modern-day James St. Claire who represented President Nixon before the Judiciary Committee.

As matters proceed, the lawyers for the Judiciary Committee should bear in mind that the need for its impeachment inquiry is based on much more than the Justice Department’s policy not to indict a sitting president for criminal conduct in violation of federal criminal law.  

This is because the department has no capacity — in legal terms, no competence — to assess whether high crimes and misdemeanors have been committed. The department is incompetent because impeachable offenses need not be a violation of federal criminal law, and not every violation of federal criminal law is an impeachable offense. Conduct that to a high degree subverts the U.S. Constitution and our republican form of government is an impeachable offense, even if it is not a violation of federal criminal law.

As Benjamin Franklin said in 1789, the Constitution has given us “a republic, if you can keep it.” The Constitution guarantees to each state a republican form of government, which means the kind of representative democracy where the elected representatives are a critical check on the president, and the president is required to take care that the laws be faithfully executed.  

That system is threatened by foreign intervention in our elections. Conduct that reinforces that interference may be sufficiently subversive to rise to the level of an impeachable offense, even if not criminal.

The Judiciary Committee has forced the issue. An impeachment inquiry has begun. 

Evan A. Davis, senior counsel with Cleary Gottlieb, was a member of the U.S. House Judiciary Committee Impeachment Inquiry staff in 1974 and led the Watergate and Cover-up Task Force. He also is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).