On Monday, the House Democrats filed a brief that with the Supreme Court that the House was actively pursuing new articles of impeachment against President Donald Trump including “the possible exercise of improper political influence over recent decisions made in the Roger Stone and Michael Flynn prosecutions, both of which were initiated by the special counsel.”
The argument is meant to justify the continued demand for redacted grand-jury material from the now closed Special Counsel investigation into the Russian collusion investigation.
I have long supported the congressional demands for documents withheld by the Trump Administration as well as witnesses, including in my testimony during the House impeachment. The ability to acquire grand jury material turns on whether an impeachment is a “judicial proceeding” under Federal Rule of Criminal Procedure 6 (e). The district court and the court of appeals ruled that it does and that the House is entitled to the material. However, the House is arguing that this request is not moot after the acquittal of President Trump at the Senate impeachment trial.
Thus, the House is arguing that
“The [House Judiciary] Committee’s investigation did not cease with the conclusion of the impeachment trial. … The withheld material remains central to the Committee’s ongoing investigation into the President’s conduct. If this material reveals new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the articles adopted by the House, the committee will proceed accordingly — including, if necessary, by considering whether to recommend new articles of impeachment.”
The House specified its continuing impeachment inquiry:
“The Committee’s investigation continues today and has further developed in light of recent events. For example, the Committee is investigating the possible exercise of improper political influence over recent decisions made in the RogerStone and Michael Flynn prosecutions, both of which were initiated by the SpecialCounsel.
See Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, et al. to Michael E. Horowitz, Inspector General, U.S. Dep’t of Justice (May 8, 2020),https://perma.cc/799D-2PNY. The Committee has announced its intention to hold a hearing with the Attorney General—who has failed to appear before the Committee at any point on any topic during his tenure—on these issues as soon as possible.”
The inclusion of the Stone and Flynn cases blurs the line between what is an oversight and an impeachment interest. It is hard to see a credible impeachment claim arising out of either case. The Stone case involves a change in a sentencing recommendation while Flynn involves a motion to dismiss the case entirely.
However, both cases garnered criticism long before the actions of the Justice Department and fall squarely within the area of prosecutorial discretion. While the House has strong claims to evidence sought by committees, its claim of a perpetual impeachment are forced and artificial.
It also raises the uncomfortable prospect for the Court of a claim of impeachment authority to trump executive privileges and challenges. The position of the House seems to be that we are able to claim the ultimate level of deference in such demands simply because we say that we have seeking a possible impeachment.
I have previously criticized the House for its slipshod and abbreviated impeachmentprocess. That record could become more relevant in this litigation where justices may generally support the right of the House to such evidence but remain skeptical of the fluid use of impeachment to justify such demands.