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The chairman of the House Committee on the Judiciary faced a vexing problem: Pressure for impeachment was building, but while lots of evidence against the president was public, key pieces of it were not. They were, rather, in the hands of a special prosecutor, who didn’t work for Congress. The prosecutor’s job was to prosecute crimes, not to evaluate the president’s fitness for office. That latter job lay with the chairman and his committee, who didn’t have access to the prosecutor’s evidence. So the House judiciary committee chairman wrote a letter requesting that the evidence be turned over.
“The House and the Judiciary Committee are under a controlling constitutional obligation and commitment to act expeditiously in carrying out their solemn constitutional duty,” wrote Chairman Peter Rodino in a letter dated Mar. 8, 1974 to John Sirica, the chief judge of the U.S. District Court for the District of Columbia. It was, Rodino said, the “Committee’s view that in constitutional terms it would be unthinkable if this material were kept from the House of Representatives in the course of the discharge of its most awesome constitutional responsibility.”
I have a suggestion for Jerry Nadler, the current occupant of Rodino’s old office: He should consider taking a page from his predecessor’s book and formally request a referral of possible impeachment material.
Nadler’s circumstances are admittedly a bit different from Rodino’s. But the similarities are striking too. And Rodino’s course suggests a way forward for Nadler that is worth serious consideration. It boils down to this: If Nadler and his committee want the evidence in the hands of Special Counsel Robert Mueller that is relevant to their performance of their own constitutional function, they should start by formally asking Mueller to refer it to them.
I ran across Rodino’s letter in a passing reference in my recent research on the Watergate “Road Map”—the grand jury report that Watergate Special Prosecutor Leon Jaworski referred to the House judiciary committee in 1974.
Specifically, Sirica mentioned the letter in his opinion approving the transmission of Jaworski’s impeachment referral: “The House Judiciary Committee through its Chairman has made a formal request for delivery of the Report materials,” the opinion says. A footnote in support of this point (footnote number four) cites the Rodino letter specifically, along with a hearing transcript. The National Archive has made both of these documents public.
Here’s Rodino’s Letter:
And here’s the hearing transcript:
Let’s acknowledge up front the differences between Rodino’s circumstances and Nadler’s. Rodino’s committee already had an open impeachment inquiry, authorized by a nearly unanimous 410-to-4 vote in the House of Representatives. Nadler’s committee, by contrast, has no open impeachment inquiry; indeed, Democratic leaders insist that they have no plans to impeach President Trump and are waiting on the evidence from Mueller before making any decisions about how to proceed. As Nadler himself recently put it, "We have to see what the Mueller report says." He added, “We have to get the facts. We will see where the facts lead. Maybe that will lead to impeachment. Maybe it won't. It is much too early."
Perhaps more importantly, Jaworski—unlike Mueller—was ready to provide material to the House. The Watergate grand jury had specifically prepared the report for purposes of transmitting it to the House Judiciary Committee in support of the impeachment inquiry. By contrast, Mueller is keeping things very quiet. He presumably doesn’t want congressional activity to interfere with his investigation. And he’s evidently not looking to jumpstart congressional investigations that will want to talk to his witnesses. Indeed, it’s not even clear if Mueller believes he has information that he would want the House Judiciary Committee to examine pursuant to its obligations under the impeachment clauses.
Suffice it, in short, to say that at the present time, neither the supply side nor the demand side of this equation is as mature as it was in 1974.
And yet, as I say, the similarities between the situations strike me as ultimately more substantial than the differences. For one thing, the structural arrangement is very similar. Once again, the judiciary committee has the impeachment authority but not the evidence, while the prosecutor has the evidence but not the authority to think beyond the narrowly criminal. In critical respects, the current iteration of this problem is actually worse than it was in Watergate. Back then, after all, the Senate Watergate committee had done its own extensive investigation, key witnesses had testified publicly, and the broad parameters of the story were thus known. The House was already proceeding with an impeachment without hearing from Jaworski. By contrast, in the current environment, Congress has almost entirely subcontracted its investigative authority to a prosecutor who has not told the legislature what he is doing. It has done so both because under Republican leadership, oversight has been—to put it mildly—lackluster, and because where it has taken place, it has generally happened behind closed doors.
As investigative reporter Michael Isikoff, who has been crusading of late for Congress to hold open hearings, put it to me in a text message Wednesday evening, Congress has “completely punted—outsourcing fact gathering to an executive branch official.” He writes, “Getting the facts and airing them to the public are core to [Congress’s] duty”; failing to hold public hearings makes “it impossible [for the House] to act—while everybody waits for an executive branch report that they may or may not see anytime soon.” Whether one agrees or disagrees with Isikoff’s critique—and I very much agree—it indisputably means that the House is far more dependant today on Mueller than Congress was in 1974 on Jaworski for the factual basis of whatever action it might contemplate.
One solution to this problem is, as Isikoff suggests, to hold public investigative hearings. But another, concurrent approach is to formally request a referral of information the judiciary committee might need to do its job. That’s what Rodino did in 1974.
The committee’s request came in response to Jaworski’s filing of the Road Map with the court and the grand jury’s request to transmit to the committee. In response, Judge Sirica held a hearing on March 6, 1974, at which the committee’s chief counsel, John Doar, appeared before the judge, along with a lawyer named Albert Jennings. Doar informed Sirica that the committee had authorized him “to request the Court to deliver the material which the Grand Jury delivered to the Court last Friday to the Judiciary Committee of the House of Representatives.” In the hearing, Sirica asked whether it might be possible to defer the impeachment inquiry until after the trial was completed.
Rodino sent the letter two days later. In it, he informed the court that the committee had “agreed unanimously to authorize and direct me to respectfully request that you provide the Committee the materials delivered to you last Friday by the Grand Jury.” He argued that, “Were the House to act in this impeachment inquiry without having had the opportunity to take this grand jury material into account, I fear that each House member, and, in fact, the entire country, would experience an enormous lack of confidence in our constitutional system of government.” In response to the judge’s question, Rodino wrote that “it is in no respect possible for the Committee and the House of Representatives now to suspend for any period of time their present pursuit of their constitutional responsibility. The House and the Judiciary Committee are under a controlling constitutional obligation and commitment to act expeditiously in carrying out their solemn constitutional duty.”
Ten days later, Sirica approved the transmission of the Road Map.
But the story, and the lesson for Nadler, does not quite end there. Because Congress a few years later wrote the Road Map procedure into law. The now-defunct independent counsel law required that “An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives . . . that may constitute grounds for an impeachment.” It was under this law that Kenneth Starr issued the so-called “Starr Report,” which was actually a referral of information that, in Starr’s judgment, the Judiciary Committee might consider grounds for impeaching Bill Clinton. The result is that we have something of a precedential tradition in which special prosecutors investigating presidents have referred material to the House judiciary committee that they regard as possible grounds for impeachment.
The trouble is that the particular statute under which Starr operated has lapsed, and the regulations that replaced it have no provision for an impeachment referral. To the contrary, they require that Mueller file a confidential report to the attorney general, who then decides what to do with it. They conspicuously do not require that information that might be essential to Congress’s performance of its duty actually reach Congress. So if Mueller actually has access to evidence that Congress would want to examine under the impeachment clauses, tapping into the incipient tradition of referring such material would require a decision on his part. And it would actually require as well as decision on the part of incoming Attorney General William Barr.
A letter from Nadler would be designed publicly and formally to remind both Mueller and Barr of the tradition and of Congress’s expectation that they act in accord with it.
Nadler has declared that he will get the Mueller report. "If necessary, our committee will subpoena the report. If necessary, we'll get Mueller to testify," he said recently. But this actually skips an important step. It assumes that Mueller’s report will be a fully developed narrative that answers all of Congress’s questions on impeachment matters. But what if the Mueller report is not factually rich? What if it is not designed to deliver to Congress information to help Congress do its job? What if it is designed, in accord with the text of the reporting requirement, merely to explain “the prosecution or declination decisions reached by the Special Counsel”?
If Nadler wants a referral from Mueller of information that, in the language of the old statute, may be grounds for impeachment, he should ask for it. He should write both Mueller and Barr a letter explaining—as Rodino explained—that it would be unthinkable if material relevant to the House of Representatives in the discharge of its most awesome constitutional responsibility were not made available to the Judiciary Committee. He should express the unacceptability of the House either acting in impeachment or failing to act in impeachment without having had the opportunity to take material in the hands of the special counsel into account. And he should request, notwithstanding the lapse in the independent counsel law, that Mueller—at the appropriate time and if such material exists—refers to the House judiciary committee “any substantial and credible information which [he] receive[d] . . . that may constitute grounds for an impeachment.”
There is, to be sure, nothing to compel Mueller’s compliance with such a request. Indeed, in the short term, he almost surely will not comply with it. And given the regulations, which do not explicitly authorize the transmission of such a report, the decision to send one would be a delicate dance. That said, Jaworski—who also served under regulatory, not statutory, authority—was actually in the same position, which is why the matter ended up in front of Sirica in the first place. So if Mueller and Barr decided that a referral were appropriate, the story of the Road Map shows that there are mechanisms available for them to send one. Clarifying congressional expectations would be a useful means of encouraging them to remember in making their decisions the equities of a coequal branch of government with an explicit constitutional obligation of its own.
Indeed, for a committee chairman committed to making sure that Mueller’s findings see the light of day, waiting until the special counsel writes a report of unspecified character and assuming he will craft it in a fashion that delivers the information required by a different institutional actor seems overly passive and overly risky. The right course is to put down on the public record to both Mueller and to Barr precisely what the committee expects of the prosecutor: specifically, that it expects of Mueller what the committee has received from special prosecutors in the past, both regulatory special prosecutors and independent counsels under the statute. That is, it should expect referral of impeachment material if such material exists. That would allow Mueller to craft his report in such fashion as to ensure that it could serve that purpose when Barr permits its release to Congress, and it would make clear to Barr that under no circumstances can he block the transmission to Congress of a report that contains evidence relevant to a reasonable impeachment inquiry. It would also create a framework in which Mueller and Barr, if they chose to act as Jaworski acted and affirmatively refer material, were responding to a request from Congress, not simply dumping material on their own initiative.
According to the acting attorney general, Mueller’s investigation is nearly done. As things stand now, there is no requirement that impeachment material find its way to Nadler. There isn’t even a request for such material.
Nadler can’t change the former problem, but he can change the latter one. All he has to do is write a letter.