Shorts: What a Watergate Document Can Teach the House Judiciary Committee
I'm Benjamin witness, and this is the law fair podcast shorts. January thirty first two thousand nineteen today. An article that we ran this morning on l'affaire entitled what an old Watergate document can teach the House Judiciary committee by me. 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 ladder 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, quote, the house and the judiciary committee are under control. Rolling constitutional obligation and commitment to act expeditiously in carrying out. Their solemn constitutional duty wrote chairman Peter Regino in a letter dated March eighth nineteen seventy four to John, Sarah. The chief judge of the US district court for the district of Columbia. It was Redeina said the quote 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, unquote. I have a suggestion for Jerry Nadler, the current occupant of regina's old office he should consider taking a page from his predecessors book and formally requesting a referral of possible impeachment material. Not ler. Circumstances are admittedly a bit different from regina's, but the similarities are striking to and regina'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 Muller that is relevant to their performance of their own constitutional function. They should start by formally asking Muller to refer it to them. I ran across regina's letter in a passing reference in my recent research on the Watergate roadmap. The grand jury report that Watergate special prosecutor Leon Jawara ski referred to the House Judiciary committee in nineteen seventy four specifically Ceric mentioned the letter in his opinion approving the transmission of war skis impeachment referral quote. 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 sites the Rudeina letter specifically along with a hearing transcript the national archive has made both of these documents public and we posted them on law. Fair this morning. Let's acknowledge up front the differences between regina's circumstances and Nadler's regina's committee already had an open impeachment inquiry authorized by nearly unanimous four hundred. Ten to four vote in the house of representatives Nadler's committee by contrast has no open impeachment inquiry. Indeed democratic leaders insist they have no plans to impeach President Trump and are waiting on the evidence from Muller before making any decisions about how to proceed as Nadler himself recently. Put it, quote, we have to see what the Muller report says, unquote. 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 unquote. Perhaps more importantly Jawara ski. Unlike Muller 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 Muller is keeping things. Very quiet. He presumably doesn't want congressional activity to interfere with his investigation. And he's evidently, not look. To jump start congressional investigations that will want to talk to his witnesses. Indeed, it's not even clear if Muller believes he has information that he would want the House Judiciary committee to examine pursuant to its obligations under the impeachment clauses. So if I sit 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 nineteen seventy four. And yet as I say the similarities between the situations strike me as alternately more substantial than the differences for one thing. The structural arrangement is very similar once again, the judiciary committee has the impeachment thority, 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 interational of this problem is actually worse than it was in Watergate back then after all the Senate Watergate committee had done its own extensive investigations 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 Joel ski 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, Mike is a cough who has been crusading of late for congress to hold open hearings. Put it to me in a text message Wednesday evening. Congress has quote completely punted. Outsourcing fact, gathering to an executive branch official unquote, Q writes, quote, getting the facts and airing them to the public are core to Congress's duty unquote failing to hold hearings makes it quote impossible for the house to act while everyone waits for an executive branch report that they may or may not see anytime soon. Whether one agrees or disagrees with is a coughs critique, and I very much agree with it. It indisputably means that the house is far more dependent today on Muller than congress was in nineteen seventy four for the factual basis of whatever action it might contemplate one solution to this problem is as is a cough suggests to hold public investigative hearings. But another concurrent approach is to formally request a referral of information that judiciary committee might need to do its job. That's what Redon did in nineteen seventy four the committee's request came in response to wars skis filing of the roadmap with the court and the grand jury's request to transmit it to the committee in response. Judge circa held a hearing on March sixth nineteen seventy four at which the committee's chief counsel John door appeared before the judge along with a lawyer named Albert Jennings door informed circa that the committee had authorized him. Quote 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 unquote in the hearing Serena asked whether it might be possible to defer the impeachment inquiry until after the trial was completed. Regino sent the letter two days later in it. He informed the court that the committee had quote agreed unanimously to authorise 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 quote worthy house to act in this impeachment inquiry without having had the opportunity to take the 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 unquote, in response to the judges question Redeina wrote that quote, it is in no respect possible for the committee and the house of representatives now to suspend for any period of time there present pursuit of the constitutional responsibility. The house and the judiciary committee are under a controlling, constitutional obligation and. Commitment to act expeditiously in carrying out their solemn duty unquote, ten days later ceriga approved. The transmission of the roadmap, but the story and the lesson for Nadler does not quite end there. Because congress a few years later wrote the roadmap procedure into law. The now defunct independent counsel law required. That quote, 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 star report which was actually a referral of information that in stars judgment. The judiciary committee might consider grounds for impeaching Bill Clinton. The result is that we have something of a presidential 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 star operated has lapsed and the regulations that replaced. It have no provision for an impeachment referral to the contrary. They require that Muller. File us 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 reached congress. So if Muller actually has 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 a decision on the part of incoming attorney general William bar. A letter from Nadler would be designed publicly and formally to remind both Muller and bar of the tradition, and of congress is expectation that they act in accord with it Nadler has declared. He will get the Muller report, quote, if necessary our committee will subpoena the report if necessary will get Muller to testify he said recently, but this actually skips an important step. It assumes that Muller's report will be a fully developed narrative that answers all of congress is questions on impeachment matters. But what if the Muller 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 quote, the prosecution or declaration decisions reached by the special counsel, unquote. If Nadler wants a referral from Muller of information that in the language of the old statute may be grounds for impeachment. He should ask for it. He should write both Muller and bar a letter explaining as Regino explained that it would be unthinkable if material relevant to the house of representatives in the discharge of its most off. Some constitutional responsibility were not made available to the judiciary committee. He should express the unacceptability of the house either acting and 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 laps in the independent counsel law that Muller at the appropriate time. And if such material exists refers to the House Judiciary committee, quote, any substantial and credible information, which he received that may constitute grounds for impeachment. There is to be sure nothing to compel Muller'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 Jawara ski who also served under. Military not statutory authority was actually in the same position. Which is why the matter ended up in front of Serena in the first place. So if Muller and bar decided that a referral were appropriate. The story of the roadmap 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 Coequal branch of government with an explicit constitutional obligation of its own indeed for a committee chairman committed to making sure that Muller's finding 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 different institutional, actor seems overly passive and overly risky. The right course is to put down on the public record to both Muller and to bar precisely what the committee. Expects of the prosecutor specifically that it expects of Mahler 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 Muller to craft his report in a fashion as to ensure that it could serve that purpose when bar permits it's released to congress, and it would make clear to bar that under no circumstances. Can he blocked? The transmission to congress of a report that contains evidence relevant to a reasonable impeachment inquiry. It would also create a framework in which Muller and bar if they chose to act as your ski 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 Muller'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 won. All he has to do is write a letter the law fair podcast shorts is produced in cooperation with the Brookings Institution. You know, what to do, you know to tweet it, you know, to share it, and you know, to leave us a rating, thanks for listening.