It’s Not Everything But It’s Definitely Something

Today, the Judiciary Committee of the House of Representatives, the committee that had Robert Mueller testify this week, asked a federal court to turn over all of the grand jury material related to Mueller’s investigation of the president. From the committee’s petition:

Special Counsel Robert S. Mueller III’s Report on the Investigation Into Russian Interference in the 2016 Presidential Election (the Mueller Report) provided Members of Congress with substantial evidence that the President of the United States repeatedly attempted to undermine and derail a criminal investigation of the utmost importance to the nation. That investigation sought to uncover Russia’s actions to interfere with the integrity of an American presidential election. Russia engaged in these acts in order to benefit then-candidate Donald J. Trump. President Trump repeatedly denied Russia’s actions and fired the director of the Federal Bureau of Investigation (FBI), resulting in the appointment of Mr. Mueller as Special Counsel.

The Mueller Report describes detailed evidence that President Trump then sought to terminate Special Counsel Mueller and to interfere with his investigation. 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. 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 power of the utmost gravity—approval of articles of impeachment.


Listening to members of the committee at their press conference today, I got the strong impression that the House Democrats are finally, finally, opening an impeachment inquiry. One of them called their actions today an “escalation”. But they denied that their only purpose is to decide whether to impeach the president. They said they might recommend something else (legislation? censure?). For that reason, and because a number of Democrats, including Speaker of the House Nancy Pelosi, are nervous about impeachment (for no good reason), the committee isn’t calling their investigation an “impeachment inquiry”. But that’s what it amounts to.

In fact, attorney Joshua Matz argues in The Washington Post that the Judiciary Committee’s investigation of the president has been an impeachment inquiry all along:

It is settled law that House committees can obtain grand jury materials as part of impeachment investigations. So the legal dispute will probably center on whether such an inquiry is underway.

The Constitution itself does not use phrases like “impeachment investigation” or “impeachment proceedings.” This has led some to mistakenly assume that the House is disregarding its impeachment power because it has not yet held a floor vote … expressly instructing the Judiciary Committee to deliberate on such articles.

But to those who specialize in these matters, that all-or-nothing vision of the impeachment power is mistaken. The Constitution’s text and structure — supported by judicial precedent and prior practice — show that impeachment is a process, not a single vote. And that process virtually always begins with an impeachment investigation in the judiciary committee, which is already occurring….

Mr. Matz then describes several cases in which the Judiciary Committee has already cited their authority to impeach the president. For example, on June 6th, when the Attorney General was charged with contempt of Congress, the committee said it wanted an unredacted Mueller report because it was deciding whether “to approve articles of impeachment with respect to the President or any other Administration official”. Twice more in June, the committee repeated that it required information in order to decide “whether to recommend ‘articles of impeachment'” for the president.

While these events unfolded at the committee level, the House approved H. Res. 430 [on June 11th], a resolution stating that the committee “has any and all necessary authority under Article I of the Constitution” to seek key grand jury material and compel … testimony. Given that Article I enumerates the “legislative Powers,” including the “sole Power of impeachment,” the message wasn’t subtle. And it was bolstered by a report accompanying H. Res. 430, which cites the Judiciary Committee’s contempt referral for [the Attorney General] as an example of using “all necessary authority under Article I” — adding that the committee is investigating “whether to recommend articles of impeachment with respect to the President or any other administration official.”

None of these references to impeachment received much publicity at the time. But Mr. Matz says they show that the Judiciary Committee has been investigating the grounds for impeachment at least since June. He also says there is only one conclusion:

The committee is engaged in impeachment proceedings and is entitled to access the grand jury material that it has requested.

In addition, four members of the committee published a brief article for The Atlantic today that says they will broaden their investigations to include “conflicts of interest and financial misconduct”, of which there is plenty to investigate.

So the I-word is finally out in the open. Does this mean the Judiciary Committee will move ahead forcefully and efficiently and that their investigation into Trump’s malfeasance will receive the appropriate level of media attention? That isn’t clear yet, but the fact that they’re no longer avoiding the term “impeachment” almost makes one giddy. From a year ago: