Case 1: 19 - - BAH Document46 Filed 10/ 25 / 19 Page 1 of 75 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In re APPLICATION OF THE COMMITTEE ON THE JUDICIARY , U . S . HOUSE OF REPRESENTATIVES, FOR AN ORDER AUTHORIZING THE RELEASE Grand Jury Action No. 19- 48 (BAH ) OF CERTAIN GRAND JURY MATERIALS MEMORANDUM OPINION GRANTING Chief Judge Beryl A . Howell THE APPLICATION OF THE COMMITTEE ON THE JUDICIARY, U .S . HOUSEOF REPRESENTATIVES Table of Contents . BACKGROUND . A . The SpecialCounsel's Investigation B . Releaseof theMuellerReport . C The InstantProceeding. . . II. LEGAL STANDARD. .. . .. III. DISCUSSION . A . Rule ( e) s “ JudicialProceeding ” Requirementis Satisfied Becausean ImpeachmentTrialis Such a Proceeding.. . . . .. ... 1. The Term “ Judicial Proceeding” in Rule ( e ) Has a Broad Meaning 2. An Impeachment Trial isJudicialin Nature. 3 . HistoricalPractice Before Enactment of Rule ( e ) Informs Interpretation of that Rule ...... 4 . Binding D .C . Circuit Precedent Forecloses Any Conclusion Other Than That an ........... Impeachment Trial is a “ Judicial Proceeding B. HJC ' s Consideration of Articles of Impeachment is “ Preliminarily To” an Impeachment Trial . 44 1. Governing Legal Principles Demonstrate That House Proceedings Can be“ Preliminarily To 44 a Senate Impeachment Trial .. 2. HJC 's Primary Purpose is to Determine whether to Recommend Articles of Impeachment 47 a. 3. Proposed Preliminarily To” Test is Contrary to Baggot. . NoHouse “ ImpeachmentInquiry Resolution is Required . c. The Record of House and HJC Impeachment Activities Here Meets the “ Preliminarily To ” Test ...... . .. Requiring More Than the Current Showing by HJC , as DOJ Demands, Would Improperly Intrude on Article PowersGranted to House of Representatives . .. 4. C . .. ........... . 47 . ... 49 b s RemainingObjections are Unpersuasive ... . . .. . . .. .. .. . . .. . . . .. . . . . . .. ........... ..... HJC Has a “ Particularized Need” for the Requested Materials .. . ........ . . ... ..... 1. Disclosure is Necessary to Avoid Possible Injustice. 2. 3. The Need for Disclosure Outweighs the Need for Continued Secrecy .. Scope of Disclosure Authorized . IV . CONCLUSION Case 1: 19- - BAH Document46 Filed 10 / 25 / 19 Page 2 of75 In March 2019, SpecialCounselRobert S . Mueller IIIended his 22- month investigation and issued a two-volume report summarizing his investigative findings and declining either to exonerate the President from having committed a crime or to decide that he did . See generally Special CounselRobert S . Mueller, III, U S. Dep ’ t of Justice, ReportOn The Investigation Into Russian Interference In The 2016 PresidentialElection ( MuellerReport ) (Mar. 2019 ), ECF Nos. 20 -8 , 20 -9 . The Special Counsel explained that bringing federal criminal charges against the Presidentwould misconduct. potentially preempt constitutionalprocesses for addressing presidential Id at II- 1. With this statement , the Special Counsel signaled his view that Congress, as the federal branch of government tasked with presidential impeachmentduty under the U . S . Constitution, was the appropriatebody to resumewhere theSpecialCounselleft off. The Speaker of the House of Representatives has announced an official impeachment inquiry, and the House Judiciary Committee ( Impeachment,” U . S. . art. I , ” ) , in exercisingCongress s “ sole Powerof 2 cl 5, is reviewing the evidenceset out in the Mueller Report. As part of this due diligence, is gathering and assessing all relevant evidence, but one critical subset of information is currently off limits to HJC: information in and underlying the MuellerReportthat waspresented to a grand jury and withheld from Congressby the AttorneyGeneral. The Department of Justice ( DOJ” ) claimsthat existing law bars disclosure to the Congressof grand jury information. SeeDOJs Resp to App. of for an Order Authorizing Release ofCertain Grand Jury Materials (“DOJResp.” ), ECF No. 20 . DOJis wrong. In carrying out the weighty constitutional duty of determining whether impeachment of the President iswarranted, Congress need not redo the nearly two years of effort spent on the Special Counsel s investigation , nor risk being misled by witnesses, who mayhave provided information Case 1: 19 - - BAH Document46 Filed 10/ 25 / 19 Page 3 of 75 to the grand jury and the Special Counsel that varies from what they tell HJC . As explained in detail below , HJC ' s application for an order authorizing the release to HJC of certain grand jury materials related to the SpecialCounsel investigation is granted. See HJC ' s App. for an Order Authorizing the Release of Certain Grand Jury Materials ( . App ” ), ECF No. 1. BACKGROUND What follows begins with a brief review of the initiation of the Special Counsel s investigation, the key findings in theMueller Report and the grand jury secrecy redactions embedded therein, as well as the significant gaps in the Special Counsel s investigation that contributed to the Special Counsel assessment that “ [t ] he evidence we obtained about the Presidents actions and intent presents difficult issuesthatwould need to be resolved if we were makinga traditional prosecutorial judgement.” Mueller Report at II- 8 Next reviewed is Congress ' s response to the release of the public redacted version of the Mueller Report and ensuing and ultimately unsuccessful negotiationswith DOJto obtain the full Report and related investigative materials, leading HJC to file the instant application , pursuant to Federal Rule of Criminal Procedure ( e)(3 )( E )( i ). A. The Special Counsel s Investigation On May 17, 2017 , then - Deputy Attorney General ( DAG ” ) Rod J. Rosenstein appointed RobertS . Mueller III to serve as Special Counselfor DOJ“ with the 2016 presidentialelection and related matters.” investigate Russianinterference U . S. Dep’ t of Justice, Officeof the Deputy Attorney General, Order No. 3915- 2017 , Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and RelatedMatters ( Appointment As noted, the Mueller Report is in two volumes, with each volume re - starting the page numbering. Thus, citations to this report use a nomenclature indicating the page number in either Volume I or Volume II. Case 1: 19- - BAH Document46 Order ) (May 17, 2017 ) (capitalization altered). Federal Bureau of Investigation ( Filed 10 / 25 / 19 Page 4 of75 Prior to the Special Counsel s appointment, the ) had already initiated an investigation into whether individuals associated with the Trump Campaign [had ] coordinat[ ed with the Russian government to interfere in the 2016 presidentialelection. Mueller Report at . The order authorizing the SpecialCounsel s appointment thus had the effect of transferring the ongoing FBIinvestigation to his office. See Appointment Order authorizing the Special Counsel“ to conductthe investigation confirmedby then- FBIDirector James B . Comeyin testimonybefore [ Congress on March 20 , 2017 ). The Special Counselwas also granted jurisdiction to investigate matters that arose directly from the FBI s Russia investigation, includingwhether the Presidenthad obstructed justice in connection with Russia- related investigations ” and " potentially obstructive acts related to the Special Counsel s investigation itself. ” Mueller Report at II- 1. Pursuant to this grant of authority and upon receiving evidence “ relating to potentialissues of obstruction of justice involving the President — the Special Counsel “ determined that there was a sufficient factual and legal basis to further investigate President.” . . the Id. at II- 12. In compliance with the DOJregulations authorizing his appointment, upon completion of his investigation the Special Counsel issued a confidential report to the Attorney General explaining the prosecution or declination decisions [ he] reached. ” Id . at - 1 ( quoting 28 C . F. R 600. 8 ( ) . ThatReport laid out the SpecialCounsel s findings in two volumes, totaling 448 pages. Both HJC and DOJpoint to the contents of the Reportas highly relevant to resolving the Then-Attorney General Jeff Sessions had recused himself“ from existing or future investigationsof any mattersrelated in any way to the campaigns for Presidentof the United States, ” Press Release, U . S . Dep’ t of Justice, Attorney GeneralSessionsStatementof Recusal (Mar. 2 , 2017), making the Deputy Attorney Generalthe “ Acting Attorney General, by operation of law ” as to such matters, In re Grand Jury Investigation, 315 F. Supp. 3d 602, 621 (D . D . C . 2018), aff d , 916 F .3d 1047 (D . C . Cir. 2019). Case 1: 19- - BAH Document46 Filed 10 / 25 / 19 Page 5 of75 current legal dispute. Indeed, DOJsubmittedthe public redactedversion of theMuellerReport as exhibits to support its arguments. See DOJ s Resp. , Exs. 8 (Volume I) , 9 ( Volume II), ECF Nos. 20 -8 , 20 -9. Therefore , a recounting of some of the key events chronicled in and conclusions (or lack thereof) reached by the SpecialCounsel in theMueller Report is in order. Volume I the Mueller Report “ describe [ s] the factual results of the Special Counsel s investigation of Russia s interference in the 2016 presidential election.” Mueller Report at - 2. The SpecialCounselconcludedthat “ [ t ]he Russian governmentinterferedin the 2016 presidential election in sweeping and systematic fashion,” “ principally through two operations. Id. at . First, a Russian entity carried out a socialmedia campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton . Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees , and volunteers working on the Clinton Campaign and then released stolen documents.” Id. Russia hacked and stole “ hundredsof thousands of documents," id. at -4 , from the Democratic National Committee, the Democratic Campaign Committee, and the Clinton Campaign, and then disseminated those documents through fictitious online personas and through the website WikiLeaksin order to influence the outcome of the 2016 presidential election . Id . at -4 , 38, 41, 48, 58 . Volume I of the Mueller Report also details evidence of between the Russian government and individuals associated with the Trump [ 2016 Presidential] Campaign.” 2 3 Id . at I According to the Special Counsel “ the [ Trump] Campaign expected it would benefit electorally from information stolen and released through Russian efforts , and the links between the Russian government and the TrumpCampaign were “ numerous.” Id. at - 1 2. For instance, a meetingoccurred on June 9 , 2016 at Trump Tower in New York City, between a Russian Case 1: 19 - - BAH Document46 Filed 10/ 25 / 19 Page 6 of 75 lawyer and senior Trump Campaign officials Donald Trump Jr. , Jared Kushner, and then campaign manager PaulManafort, triggered byinformation provided to those campaign officials that the Russian lawyerwould deliver “ official documents and information thatwould incriminate Hillary [ Clinton]. Id at 6 internal quotation marks omitted) . Additionally , the Mueller Reportdocuments connections between Ukraine and Manafort , who had previously “ work ed ] for a pro-Russian regime in Ukraine. ” Id. at I- 129. Among other things, the Special Counsel determined that “ during the campaign” Manafort— through “ Rick Gates, his deputy on the Campaign ” “ periodically sent” internal Trump Campaign “ polling data ” to Konstantin Kilimnik, Manafort s long-time business associate in Ukraine with alleged ties to Russian intelligence, with the expectation thatKilimnik would “ share that informationwith othersin Ukraine. . The MuellerReport further recounts evidence suggestingthat then -candidate Trumpmay have received advance information aboutRussia s interferenceactivities, stating: Manafort, for his , told the Office that, shortly after WikiLeaks' s July 22 release, Manafort also spokewith candidate Trump redacted ] Manafort also [ redacted ] wanted to bekeptapprised of any developments with WikiLeaks and separately told Gates to keep in touch redacted] about future WikiLeaks releases. According to Gates, by the late summer of 2016 , the Trump campaign was planning a press strategy , a communications campaign , and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted ] while Trump and were driving to LaGuardia Airport. [ Redacted ] , shortly after the call candidate Trump told Gates that more releases of damaging information would be coming. Id. at 53 –54 footnotes omitted ) (redactions in original, with citation in referenced footnote 206 redacted due to grand jury secrecy) . Case 1: 19 - - BAH Document46 Filed 10/ 25 / 19 Page 7 of 75 The public version of Volume I contains over 240 redactionson the basis of grand jury secrecy . redactions occur in parts ofthe MuellerReport that include discussion ofthe Trump TowerMeeting, then - candidate Trump s discussion with associates aboutreleasesof hacked documents, and Manafort s contacts with Kilimnik . See id. at & n. 206 , 111 12 , 117, 120, 136 – 37 , 140 143. Volume II of theMueller Report summarizes the “ obstruction investigation,” which “ focused on a series of actions by the Presidentthat related to the Russian- interference investigations, including the President s conduct towards the law enforcement officials overseeing the investigations and the witnesses to relevant events.” Id. at II- 3 (capitalization altered). The SpecialCounseldetermined that “ the Presidentofthe United Statestook a variety of actions towards the ongoing Russia related investigations raised questions about whether he had obstructed justice .” Id. at II1. For example, in the summer of 2017 after news reports aboutthe Trump TowerMeeting, President Trump “ directed aides notto publicly disclose the emails setting up the June 9 meeting” and “ edited a press statement for Trump eliminatingthe portion “ that acknowledged that the meeting was with [ Trump Jr. ] was told might have information helpful to the campaign Trump s personal attorney ., an individualwho while President repeatedly denied the President had played any role” in Trump Jr. s statement. Id . at II-5 ( alterationin original). In another instance involving potentialwitness tampering, the Mueller Report examined the events leadingto former Trump Organizationexecutiveand attorney MichaelCohen 3 Redactionsin theMueller Reportwere not applied by the SpecialCounsel' s Office but Departmentof Justice attorneys workingclosely togetherwith attorneys from the SpecialCounsel s Office, as well as with the intelligence community, and prosecutors who are handling ongoingcases.” William P . Barr, Attorney General, Departmentof Justice, AttorneyGeneralWilliam P . Barr DeliversRemarkson the Releaseof the Reporton the Investigation into Russian Interferencein the 2016 PresidentialElection ( Apr. 18, 2019) , https: //www . justice.gov/ opa/speech/ attorney - general- william - p-barr- delivers-remarks-release-report- investigation russian. Case 1: 19 - - BAH Document46 Filed 10/ 25 / 19 Page 8 of 75 providingfalse testimony to Congress, in 2017, abouta dealto build a Trump Tower in Moscow, Russia. Id. at II-6 . While Cohen was preparingto give that false testimony the President' s personal counsel told Cohen , according to Cohen, that “ Cohen should contradict the President. Id on message and not Then, in April 2018 , after Cohen becamethe subject of a criminal investigation and the FBIhad searched Cohen s home and office, the President stated publicly “ that Cohen would not flip and “ contacted Cohen directly to tell him to strong, the same time that President Trump s personal counsel“ discussed pardons” with Cohen. Id . As DOJpoints out, DOJResp. at 32 n . 19 , the public version of Volume II contains some, butfar fewer, redactions on the basisof grand jury secrecy than does the public version of Volume . 4 Again , the Mueller Reportrecounts an incident when then-candidate Trump spoke to associates indicating that he may havehad advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “ shortly after WikiLeaks s July 22 , 2016 release of hacked documents, [Manafort spoke to Trump( redacted ] Manafort recalled that Trump responded that Manafort should redacted ] keep Trump updated. Deputy campaign 4 The reason for the fewer grand jury related redactionsin VolumeII addressing“ questionsaboutwhether the President] had obstructed justice, Mueller Reportat II- 1 becomesclearupon analysis. Theintroduction to this part of the MuellerReportprovidesassurancesthat “ we conducted a thorough factual investigation in order to preservethe evidencewhen memorieswere fresh and documentarymaterialswere available.” Id . at II- 2. As the MuellerReporthighlights, a President does nothave immunity after heleavesoffice, and quotingDOJpolicy, the Report further observes that an immunity from prosecution for a sittingPresidentwould not preclude such prosecution once the President's term is over or heis otherwiseremoved officeby resignationor impeachment.” . at n . 4 (quoting A Sitting Presidents Amenability to Indictmentand CriminalProsecution, 24 Op. . 222, 255 ( 2000) [hereinafterOLC Op. . Yet, someindividuals whose actions figure prominentlyin incidentsdescribed in VolumeIIwere never compelled to testify under oath before the grand jury to preservetheir testimony. For example, severalwitnesses, who simply declinedto speak to the SpecialCounsel, as is their right, were notpursued with the tools available to prosecutorsto gathermaterialevidence in a criminalinvestigation. Certain consequencesflow from theseprosecutorialchoices — other than the obviousfact that the grand jury was given no opportunity to consider this evidence idence namely: namely: the the testimony testimo of these individuals is not formally preserved butalso any statementsor documentaryevidence thatwas obtained from these individuals is notprotectedby grand 2019 WL 5268929, at * 1 (Oct. jury secrecy. See In re Application of the Committee on the Judiciary, No. 1917, 2019) (orderingDOJto unsealimproperly redacted portion of declaration pertainingto “ identitiesof individuals who did nottestify before the grandjury Notice of Compliance with Ord. of Oct. 17, 2019 (“DOJ Notice ), Ex. 10 Decl. of Associate Deputy Attorney General( ADAG ) Bradley Weinsheimer Revised ADAG Decl. ) , ECF No. 44 - 1 (revealing that “ Don McGahn did nottestify before the grand jury” and “ Donald Trump, Jr. also did nottestify before the grand jury ) . Case 1: 19- - BAH Document46 Filed 10 / 25 / 19 Page 9 of75 managerRick Gates said that. . . ManafortinstructedGates( redacted] status updates on upcoming releases. Around the sametime, Gates was with Trump on a trip to an airport [ redacted], and shortly after the call ended , Trump told Gates thatmore releases of damaging information would be coming.” Id. at II- 18 footnotes omitted ) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy) . In addition, a discussion related to the Trump Tower Meeting contains two grand jury redactions: On July 12, 2017, the Special Counsel s Office redacted ] Trump Jr. redacted ] related to the June 9 meeting and those who attended the June 9meeting.” Id . at II-105 ( redactions in original) . The Mueller Report acknowledges investigative “ gaps” thatwere sufficiently significant that the Special Counsel could not rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.” - 10. Six “ identified gaps” were that: ( 1) “ [ Id. at omeindividualsinvoked their Fifth Amendment right against compelled self- incrimination andwere not in the Office s judgment, appropriate candidates for grants of immunity” ; ( ) “ [ s ] ome of the information obtained . . . presumptively covered by legal privilege and was screened investigators ” ; ( 3) “ other witnesses and information — such as information known to attorneys or individuals claiming to bemembers of the media” were not pursued in light of internalDepartmentof Justice policies” ; ( 4 ) “ practical limits ” prevented the gathering of information and questioning of witnesses abroad ; ( 5 [ e ] ven when individuals testified or agreed to be interviewed , they sometimes provided information thatwas false or incomplete and ( 6 ) some of the individuals we interviewed or whose conduct we investigated — including some associated with the Trump Campaign deleted relevantcommunicationsor communicated duringthe relevantperiodusing applications that feature encryption or that do not provide for long - term retention of data or Case 1: 19- communicationsrecords.” -BAH Document46 Filed 10/ 25/ 19 Page 10 of 75 Id. Consequently, the Mueller Report cautions that“ [ a ] statement that the investigation did notestablish particular facts does notmean there was no evidence of thosefacts. ” Id . at - 2 . The Report acknowledges thatthese gaps adversely affected the investigation and, in someinstances, precluded the Special Counsel from reaching any conclusion about whether criminalconduct occurred. For example, evidence related to the President s knowledgeabout his personalattorney s involvementin the preparationof Cohen s false testimony to Congresswas not pursued. The MuellerReport states that “ [ t] he Presidents personal counsel declined to provide uswith his account of his conversations with Cohen , ” and “ we did not seek to obtain the contents of any . . communications ” between PresidentTrump and his attorney during thattime period . Id . at II - 154. “ The absence of evidence about the President and his counsel s conversations about the drafting of Cohen s statement precludes us from assessing what, if any, role the President played ” Id. In another example, the Special Counselexamined the circumstances of ameetingheld, during the transition, on January 11, 2017, on the Seychelles Islands between Kirill Dmitriev, the chief executive officer of Russia s sovereign wealth fund, and Erik Prince, a businessman with close ties to Trump Campaign associates, includingsenior TrumpadvisorSteve Bannon. See id. at - 7 148. Princesaid he discussed themeetingwith Bannon in January 2017, but Bannon denied this, and “ t ] he conflicting accounts be independently clarified . . could not neither [ Prince nor Bannon was able to produce any of the [ text] messages they exchanged in the time period surrounding the Seychelles meeting.” at - . “ Prince s phone contained no textmessages prior to March 2017” and “ Bannon s devices similarly contained no messagesin therelevanttimeperiod,” and neither Prince nor Id. Case 1: 19- -BAH Document 46 Bannon could account for the absentmessages. Filed 10 / 25/ 19 Page 11 of 75 Id. ; see also id . at 55 ( extensive grand jury redactions ). Some areas of the report describing such gaps contain redactions of grand jury material. For example, in describing the Trump TowerMeeting, the Mueller Report states: “ The Office spoke to every participant [at the Trump Tower Meeting] except ] Veselnitskaya and Trump, Jr. the latter of whom declined to be voluntarily interviewed by the Office, ” with the remainder of the sentence redacted for grand jury secrecy. Id. at 117 The Special Counsel declined to pursue charges related to thismeeting in part because “ the Office did not obtain admissible evidence likely to meet the government s burden to prove beyond a reasonable doubt that these individualsacted .” Id at 186. TheMuellerReportalso revealsthe SpecialCounsel s unsuccessfuleffortto speak directly with the President: “ Wealso soughta voluntary interview with the President . After more than a year of discussion, the President declined to be interviewed, ” which statement is followed by two lines redacted references to grand jury material. Id . at II- 13. Although “ the President did agree to answer written questions on certain Russia- related topics, and he provided us with answers ” the Presidentrefused “ to provide written answers to questions on obstruction topics or questions on events during the transition. ” Id . The SpecialCounsel acknowledged “ that we had the authority and legal justification to issue a grand jury subpoena to obtain the Both Princeand Bannon testifiedbefore congressionalcommittees. See Testimony of Erik Prince Before the H . PermanentSelect Comm. on Intelligence, 115th Cong. (Nov. 30 , 2017), https: // docs.house. gov/meetings/IG / / 20171130/ 106661 / HHRG- 115Transcript- 20171130.pdf; H . PERMANENTSELECTCOMM. ON INTELLIGENCE , 115TH CONG ., SCOPE OF INVESTIGATION, MINORITYVIEWSat 11 (MARCH 26 , 2018), https:/ /perma. cc/ D9HE-AFUH (reportingon Steve Bannon s testimony) . Another example involves a July 2016 trip to Moscow by Carter Page, then a Trump Campaign official, who gave a speech in Moscow and represented in emails to otherCampaign officialsthathe also spokewith Russian governmentofficials. MuellerReportat 96 - 98 - 101 . Yet, [t he Officewasunableto obtain additional evidence or testimony aboutwho Page mayhave met or communicatedwith inMoscow; thus, Page s activities in Russia . . were not fully explained. ” Id. at . This sameparagraphreportingthis gap in the evidencecontains redactedreferencesto grand jury material. See id. Case 1: 19- -BAH Document46 President s testimony ” but“ chose not to do so. ” Filed 10/ 25/ 19 Page 12 of 75 Id . ; see also Mueller Report App C (describing efforts to interview the President in greater detail). When the SpecialCounsel testified before Congress on July 24 , 2019 , he acknowledged that the President' s written responses to questions posed by the Special Counsel s Office were “ generally only inadequateand incomplete,” but also “ showed thathe wasn' t alwaysbeing truthful.” HJC App. , Ex. W , Former Special Counsel Robert S. Mueller, IIIon the Investigation into Russian Interference in the 2016 PresidentialElection : Hearing before the H . PermanentSelect Comm . on Intelligence, 116th Cong. 83(July 24 2019) , ECF No. 1-24 . The Special Counsel s investigation notestablish thatmembers ofthe Trump Campaign conspired or coordinated with the Russian government in its election interference activities. ” MuellerReport at 2 . Nor did the Special Counsel “make a traditional prosecutorial judgment or otherwise“ draw ultimateconclusionsaboutthe President' s conduct.” Id. at II- 8 . At the same time, the SpecialCounsel stated that “ if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice , we would so state ” Id . at II2 . “ [ W ] hile this report does not conclude that the President committed a crime, it also doesnotexoneratehim .” Id see also id. at II- 8, II - 182 ( reiteratingthatReport “ does notexonerate” President). “Given the role ofthe Special Counsel as an attorney in the Department of Justice and the framework ofthe Special Counselregulations, ” the Special Counsel accepted ” the DOJOffice of LegalCounsel s (“ OLC” ) legalconclusion that “ the indictmentor criminal prosecution of a sitting Presidentwould impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions of constitutional separation of powers. ” violation at II 1 citation omitted) (quoting OLC Op. at Case 1: 19- -BAH Document46 Filed 10/ 25/ 19 Page 13 of 75 222, 260 ). This OLC legal conclusion has never been adopted, sanctioned , or in anyway approved by a court At the same time, impeachment factored into this analysis, as the Special Counsel also concluded that Congress may apply the obstruction laws to the President s corrupt exerciseof the powers of office which accords with our constitutional system of checks and balances and the principle that no person is above the law .” B Id . at II- 8. Release of the Mueller Report OnMarch 22, 2019 Attorney General ( AG ) William Barr, as required by 28 C . F . R . 600. 9 a )( 3 ), notified the Chairmen and RankingMembers of the United States House and Senate Judiciary Committees, via a one- page letter, that the SpecialCounselhad completed his investigation . DOJ Resp ., Ex . 1 Letter from William P . Barr, Attorney Gen ., Dep ’ t of Justice , to Lindsey Graham , Chairman , S. Comm . on the Judiciary , et al. (Mar. 22, 2019) , ECF No. 20 -1. AG Barr stated thathe“ intend[ ed] to consult with Deputy Attorney GeneralRosenstein and SpecialCounselMueller to determinewhat other informationfrom the report [could] be released to Congress and the consistentwith the law , much transparency as possible .” and thathe “ remain [ ed] committedto as . Two days later, on March 24, 2019, AG Barr senta second, four -page letter to the Chairmen and Ranking Members of the United StatesHouse and Senate Judiciary Committees, advising them “ of the principal conclusions reached by Special Counsel Robert S. Mueller III,” and reiterating his “ intent . to release asmuch of the Special Counsel s report as (possible consistent with applicable law ” noting that he first needed to identify information “ subject to FederalRule of CriminalProcedure 6 (e),” as well as “ information that could impact other ongoing matters. ” DOJResp. , Ex. 2 Letter from William P . Barr , Attorney Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 14 of 75 Gen. , Dep ’ t of Justice , to Lindsey Graham , Chairman , S. Comm . on the Judiciary , et al. 1, 4 (Mar. 24, 2019) , ECF No. 20 -2 .7 The nextday, March 25, 2019, the chairpersons of six House committees ( House Committee Chairpersons” ) — including HJC Chairman Jerrold Nadler responded to AG Barr in a three-page letter. See HJC App., Ex. C Letter from Jerrold Nadler, Chairman , H . Comm . on the Judiciary, et al., to William P . Barr, Attorney Gen. , Dep’ t of Justice (Mar. 25 , 2019 ), ECF No. 1-4 . Highlightingthat each of their committees was “ engaged in oversight activities that go directly to the President' s conduct, his attempts to interfere with federal and congressional investigations , his relationships and communications with the Russian government and other foreign powers and / or other alleged instances ofmisconduct, ” the House Committee Chairpersons “ formally request[ ed ] that AG Barr release the SpecialCounsel s full report to Congress ” and “ begin transmitting the underlying evidence and materials to the relevant committees.” Id. at 1. This information, they explained was necessary “ to perform their duties under the Constitution , ” such as their duty to “make an independent assessment of the evidence regardingobstruction of justice.” Id. at 1, 2 .8 In his summary of the MuellerReport s principalconclusions,” AG Barr stated that “ [ t ] he Special Counsel s investigation did not findthat the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U . S . presidentialelection Letter from William P . Barr to Lindsey Graham , et al., supra , at 2 (Mar. 24, 2019), and that [ t ]he SpecialCounsel. . . did notdraw a conclusion way or the other— as to whether the “ actionsby the President. . . that the SpecialCounsel investigated constituted obstruction,” id at 3 . AG Barr determined that t ] he SpecialCounsel s decision to describethe facts of his obstruction investigation withoutreachingany legalconclusions it to him as the Attorney General“ determinewhether the conduct described in the report constitutes a crime,” and he“ concludedthat the evidence developed during the SpecialCounsel' s investigationis notsufficientto establish that the Presidentcommitted an obstruction-of- justice offense. ” Id. 8 On February 22 , 2019 before the Mueller Reportwas submitted to AG Barrbutwhenmedia reporting suggested that the SpecialCounselinvestigationwasnearingits end — the HouseCommittee Chairpersonshad submitted a similar requestto AG Barr, notingthat “because the Departmenthas taken the position that a sitting Presidentis immune from indictmentand prosecution, Congress could be the only institution currently situated to act on evidenceofthe President s misconduct.” HJC App. , Ex. B Letter from Jerrold Nadler, Chairman, H . Comm . on the Judiciary, et al., to William P . Barr, Attorney Gen ., Dep ’ t of Justice 2 (Feb. 22, 2019), ECF No. 1- 3 ( footnote omitted) 14 Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 Page 15 of 75 Four days later, on March 29, 2019, AG Barr respondedto both the House Committee Chairpersons letter and a letter sent by Senate Judiciary Committee ( ” ) Chairman Lindsey Graham . See DOJ Resp ., Ex. 3, Letter from William P. Barr, Attorney Gen ., Dep ’t of Justice , to Lindsey Graham , Chairman, S . Comm. on the Judiciary , and Jerrold Nadler, Chairman, H . Comm. on the Judiciary (Mar. 29, 2019 ) , ECF No. 20 -3 . AG Barr reaffirmed that he was preparing the Report for release, again noting that redactionswould be required to protect material that was subject to grand jury secrecy under Rule ( e ) and that could compromise sensitive sources and methods, as well as to protect information that could pose harm to other ongoingmatters or was related to the privacy andreputations of third parties. Id . at 1. The House Committee Chairpersons objected to AG Barr proposed redactions. See HJC App ., Ex . D Letter from Jerrold Nadler, Chairman , H . Comm . on the Judiciary , et al. , to William P. Barr, Attorney Gen , Dep ’ t of Justice (Apr. 1 2019 ), ECF No. 1-5. They observed that “ [ t] he allegations at the center of Special CounselMueller' s investigation strike at the core ofourdemocracy,” such that“ Congressurgently needs his full unredactedreport and its underlying evidence in order to fulfill its constitutional role. ” Id. at 2; see also id. App at 1 ( stating that Congress has an “ independentduty to investigate misconductby the President” ). As to grand jury material, the House Committee Chairpersons proposed that DOJ“ seek leave from the district court to produce those materials to Congress — as ithas done in analogous situations in the past at 2 , explainingthat thematerialwasneeded because“ [ engagedin an ongoing investigation of whether the Presidenthas undermined the rule of law , includingby compromisingthe integrity of the Justice Department, ” id App On April 18, 2019, AG at 2. released the Mueller Report in redacted form to the Congress and the public . See DOJResp., Ex. 4 , Letter from William P . Barr, Attorney Gen. , Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 Page 16 of 75 Dep ’t of Justice , to Lindsey Graham , Chairman, S . Comm . on the Judiciary , et al. ( Apr. 18, 2019), ECFNo. 20 -4. AG Barr also promised to “make available” to SJC Chairman Graham , HJC RankingMember Dianne Feinstein, Chairman Nadler, andHJC RankingMember Collins“ a version of the reportwith all redactions removed exceptthose relating to grand- jury information.” Id. at4 . Notsatisfied with the redacted version of the MuellerReport, the nextday HJC served a subpoena on AG Barr requiring the production of three classes of documents: ( 1 ) and unredacted version of the [Mueller Report],” including attachments ; ( 2) t he complete ] lldocuments referenced in the Report” ; and (3 ) [ a ]lldocuments obtained and investigative materials created by the Special Counsel s office.” HJC App . , Ex . G , Subpoena by Authority ofthe H . of Representatives to William P . Barr, Attorney Gen., Dep’ t of Justice 3 (Apr. 19 2019), ECF No. 1- 8 . DOJhas granted HJC access to “ the entirety of VolumeII with only grand jury redactions” and did from [ the same with regard to Volume I” for “ the Chairman and RankingMember ].” DOJResp. at 6 n. 2. DOJhas not, however, allowed HJC to review the portions of the Mueller Report redacted pursuant to Rule 6 ( ). See, e. g. , HJC App., Ex. K Letter from Stephen E. Boyd , Assistant AttorneyGen., Dep t of Justice , to Jerrold Nadler, Chairman, H. Comm . on the Judiciary 4 (May 1, 2019 ) , ECFNo. 1-12 (stating that “ Rule 6 (e) contains no exceptionthatwould permit the Departmentto provide grand- jury information to the Committee in connection with its oversight role” ). . The Instant Proceeding On July 26 , 2019 , HJC submitted the instant application for an order pursuant to Federal Rule of Criminal Procedure ( e) authorizing the release to HJC of certain grand jury materials 16 Case 1: 19- related to the Special -BAH Document46 Filed 10 / 25/ 19 Page 17 of 75 s investigation. HJC App. HJC requests the release to it of three categories ofmaterial: 1. all portionsof [the Mueller Report that were redacted pursuant to Federal Rule of Criminal Procedure (e ); 2 . any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6 ( e ) ; and 3. transcripts of any underlying grand jury testimony and any grand jury exhibits that relate directly to ( A ) President Trump ' s knowledge of efforts by Russia to interfere in the 2016 U . S . Presidential election ; (B ) President Trump s knowledge of any direct or indirect links or contacts between individuals associated with his Presidential campaign and Russia , including with respect to Russia ' s election interference efforts; (C ) President Trump ' s knowledge of any potential criminal acts by him or any members of his administration , his campaign , his personal associates, or anyone associated with his administration or campaign ; or ( D ) actions taken by former White House Counsel Donald F. McGahn II during the campaign , the transition , or McGahn s period of service as White House Counsel .” Id. at 1– 2 After entry of a scheduling order in accord with the dates proposed by theparties, see Min . Ord . (July 31, 2019), DOJfiled its response to HJC ' s application on September 13, 2019 , maintainingthat Rule 6 ( e ) prohibits disclosure of the requested material to HJC , see DOJ Resp., and HJC filed its reply on September 30 , 2019, see HJC ' s Reply in Support of its App. for an Order Authorizing the Release of Certain Grand Jury Materials ( ) , ECF No. 33. Following a hearing on October 8, 2019, the partiesprovided supplemental submissions to On August30, 2019, the Constitutional Accountability Center submitted an amicusbrief in supportof HJC ' s application, see Br. of ConstitutionalAccountability Ctr . as Amicus Curiae in Support of HJC , ECF No. 16 -1, and, on October 3 , 2019 RepresentativeDougCollins, HJC' s RankingMember, submitted an amicusbrief urging denial of HJC' s application, seeMem . AmicusCuriae of RankingMemberDougCollins in Support of Denial ( CollinsMem .” ), ECF No. 35 . Case 1: 19- - BAH Document 46 Filed 10/ 25 / 19 Page 18 of 75 address additional issues not covered by the initial briefing. See Min. Ord. (October 8 , 2019 ) . 10 This matter is now ripe for resolution. II. LEGAL STANDARD Under Rule 6 (e) of the Federal Rules of Criminal Procedure, disclosure of“ amatter occurring before the grand jury ” is generally prohibited . FED. R . CRIM . P . 6 (e )(2 )( B ). While witnesses are expressly exempted from any “ obligation of secrecy,” id 6 ( e) (2 ) (A ) the Rule provides a listof seven categories of persons privy to grand jury proceedingswho must keep secret [i ] nformation . . presented to the grand jury, In re Sealed Case No. 99 -3091(Office of Indep. CounselContempt Proceeding), 192 F . 3d 995 , 1002 (D . C . Cir. 1999) (per curiam ), including grand jurors , interpreters court reporters, operators of recording devices, persons who transcribe recorded testimony , attorneys for the government , and certain other persons to whom authorized disclosure is made, FED . R . CRIM . P. 6 ( ) (2)( B ) (i) ( vii . Rule 6 ( e ) also sets out exceptionsto grand jury secrecy, someofwhich allow disclosure without any judicial involvement and others ofwhich require either judicial notice or a court order. See FED. R . . P. 6( e) ( 3) ( A ) –( E ) . 12 The D . C . Circuitrecently held, in McKeeverv. 10 As part of this supplementalbriefing DOJwas directed to provide its reasoningfor redacting from public view , as grand jury material, portionsof a declaration submitted by DOJin support of its position that HJC ' s application should be denied. See Min. Order (Oct. 8 2019) . This Courtdetermined that the declaration hadbeen improperly redacted and ordered DOJto correct its error. In re Application of the Committee on the Judiciary, 2019 WL 5268929. DOJcomplied with thatorder on October 20, 2019. See DOJNotice 11 The definition of“ matteroccurringbefore the grand jury” can also encompass information “ that would to revealsomesecret aspectof the grand jury ' s investigation, including the strategy or future direction of the investigation,” Bartko v. U . S . Dep t of Justice, 898 F.3d 51, 73 (D . C . Cir. 2018) (quoting Hodge v. FBI, 703 F . 3d 575 , 580 ( D . C . Cir. 2013)) , the D .C . Circuit has “ cautioned . . . the problematic nature of applying so broad a definition, In re Sealed Case No. 99 - 3091, 192 F .3d at 1001( quoting In re Sealed Case No. 98 3077, 151F . 1059, 1071n .12 (D . C . Cir. 1998) ( per curiam )) . 12 For instance, under Rules 6( e) (3) ( A )(ii) and 6 ( e)( 3) ( D ) , the governmentmay disclose grand jury materialin certain circumstanceswithouta court order butmust provide notice of disclosure to the courtthat impaneled the grand jury . See FED. R . CRIM . P . ( e )( 3)( B ), ( D ) (ii). In March 2016 , this Court instituted a system for docketing such notices received in this District, and sincethat timethe governmenthas submitted 783 notice letters. See In re Grand Jury Disclosures, 16 -gj- 1 (D . D .C . 2016 ) (184notices); In re Grand Jury Disclosures, 17 - 1 (D . D .C . 2017) ( 83 notices); In re Grand Jury Disclosures, 18- gj -1 (D . D .C . 2018) (244 notices) ; In re Grand Jury Disclosures, 19 - 1 ( D . D .C . 2019) (272 notices). This number undercounts the actualnumber of disclosures, given that a single notice often advises that grand jury informationhas been shared withmultiple persons and entities. Among these 18 Case 1: 19- - BAH Document 46 Barr, 920 F. 3d 842 ( D . C . Cir. 2019), reh Filed 10/ 25 / 19 Page 19 of 75 denied , Order , No. 17-5149 (D . C . Cir. July 22 , 2019 ), docketing petition for cert., No. 19-307 (U .S . Sept. 5 , 2019), that the “ text of the Rule” prevents disclosure of a “ matter appearing [ sic ] before the grand jury otherwise . at 848 ( quoting incorrectly FED. R . P unless these rules provide ( )( ) ( B ) . 13 In the D . C . Circuit binding view , “ deviations from the detailed list of exceptions in Rule ( e) are not permitted,” id. 846 , and thus a “ district court has no authority outside Rule 6 (e) to disclose grand jury matter III. at 850. 14 DISCUSSION HJC is “ not requesting the entire grand jury record” of the Special Counsel' s investigation. HJC Reply at 24 . Instead , HJC seeks only disclosure of the grand jury noticeswere sixteen instanceswhen grand jury informationwas revealed to foreign governments. DOJhas represented that “ [ n] o grand jury information collected from theMueller investigationand protected from disclosure was shared with any foreign governmentpursuant to Rule 6 ( e ) (3) ( D ). ” DOJ' s SupplementalSubmission in Resp. to Min . Ord. ofOct. 8, 2019 ( “DOJSecond Supp. at 2 , ECF No. 40. The D .C . Circuit s narrow textual reading of Rule 6 ( e) is based on the subsection in the Rule that secrecy is required “ [ u ]nless these rules provide otherwise .” FED . R . CRIM . P . ( e )( 2) B ) (emphasis added ). Yet, this subsection is difficult to reconcile with other statutory authorities that either require or permit disclosure of grand jury matter in civil forfeiture, financial regulatory , special- grand jury , and criminal defense contexts . See , e .g , 18 U . S.C . 3322 ( a) (allowing disclosure of grand jury information to “ an attorney for the government . use in connection with any civil forfeiture provision of federal law ” ) ; id . $ (a ), (b )( 1)( A ) (authorizing disclosure of grand jury information to an attorney for the government for use in enforcing section 951of the Financial Institutions Reform , Recovery and Enforcement Act of 1989 and federal and state financial institution regulatory agencies “ for use in relation to any matter within the jurisdiction ofsuch regulatory agency ” when the relevant grand jury was investigating a banking law violation ) ; id . $ $ 3333 a ), (b ) (permitting special grand juries to provide reports that the impaneling court maymake public ) ; id . $ 3500 ( b ), ( ) ( ) requiring disclosure to criminal defendant of certain grand jury testimony of trial witnesses ). 14 The D . C . Circuit in McKeever rejected the view articulated by this Court and several Circuit Courts of Appeals that courts have inherent authority to disclose grand jury material. See, e . ., In re Application to Unseal Dockets Related to the Independent Counsel' s 1998 Investigation of President Clinton , 308 F. Supp . 3d 314 , 324 (D . D . C . 2018 ) (Howell , C .J.) , appeal docketed , No. 18 -5142 ( D .C . Cir .May 17 , 2018 ); In re Petition of Kutler, 800 F . Supp . 2d 42, 47 ( D . D . C . 2011) (Lamberth , C . .); see also Carlson v. United States, 837 F.3d 753, 766 67 (7th Cir . 2016 ); In re Craig , 131 F .3d 99, 103 ( Cir . 1997) ; Pitch . United States , 915 F .3d 704, 707 (11th Cir. 2019 ) , rehearing en banc ordered and opinion vacated , 925 F .3d 1224 ( 11th Cir . 2019 ). HJC acknowledges this, conceding that “McKeever currently forecloses the Committee from prevailing before this Court on an inherent authority ] argument,” but nonetheless raises inherent authority as a basis for disclosure to preserve [] its argument “ [ i ] n the event McKeever is subject to further review .” HJC App . at 40. The entire grand jury record would be extensive since the Special Counsel s investigation involved the execution of 500 search - and -seizure warrants, ” issuanceof more than 230 orders for communications recordsunder 18 U . S . C . 2703 d ) ” “ almost 50 orders authorizing use of pen registers, ” 13 requeststo foreign governments pursuant to MutualLegal Assistance Treaties, ” and “ more than 2 , 800 subpoenas under the auspices of 19 Case 1: 19- -BAH Document46 Filed 10/ 25/ 19 Page 20 of 75 information referenced in or underlying the MuellerReport as wellas grand jury information collected by the Special Counsel relating to four categories of information pursuantto Rule 6 ( ) s exception for disclosure “ preliminarily to or in connection with a judicial proceeding. HJC App . at 26 ( internal quotation marks omitted) (quoting FED. R . CRIM . P . ( ) ( 3)(E )(i ) . Disclosure of grand jury information is proper under this exception when three requirements are satisfied. The person seeking disclosure must first identify a relevant judicial proceeding within the meaning ofRule (e )(3 )( E) (i ); then , second, establish thatthe requested disclosure is preliminarily to ” or “ in connection with ” that proceeding; and, finally, show a “ particularized need” for the requested grand jury materials. See United States v. Sells Eng 418 , 443 Inc. , 463 U . S . 1983 ) ( “Rule 6 ( )( 3) ([ E ]) (i ) simply authorizes a court to order disclosure preliminarily to or in connection with a judicial proceeding. ' . . have consistently construed the Rule, however, to require a strong showing of particularized need for grand jury materials before any disclosurewillbepermitted ; United States v. Baggot, 463 U . S. 476 480 ( 1983) (explaining that the “ preliminarily to or in connection with a judicial proceeding and the “ particularized need” requirements are independentprerequisites to ([ E ])(i disclosure” ( internal quotation marksomitted) ) . Asdiscussedmore fully below , HJC has identified the requisite “ judicialproceeding” to be a possible Senate impeachment trial, which is an exercise of judicial power the Constitution assigned to the Senate. See U . S. CONST. art. I 3 , cl. 6 . HJC has demonstrated that its current investigation is “ preliminarily to ” a Senate impeachment trial, as measured Supreme Court and D . C . Circuit precedent by the “ primary purpose” per binding s requested disclosure to determine whether to recommend articles of impeachment against the President. a grand jury sitting in the Districtof Columbia,” and interviewsof “ approximately 500 witnesses,” “ almost80 whom “ testified beforea grand jury.” MuellerReport at I- 13. Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 21of 75 This purpose has only been confirmed by developments occurring since HJC initially submitted its application. Finally, HJC has further shown a “ particularized need” for the requested grand jury materials that outweighs any interest in continued secrecy. See Douglas Oil Co. of Ca. . Petrol Stops Nw. 441 U . S . 211, 222 – 23 1979) . The need for continued secrecy is reduced , given that the Special Counsel s grand jury investigation has ended , and is easily outweighed by HJC' s compellingneed for the grand jurymaterial referenced and cited in the Mueller Report to conduct a fulsome inquiry, based on all relevant facts, into potentially impeachable conduct by the President The three requirements for disclosure under Rule 6 ( ) (3)( E )( i) are addressed seriatim . A Rule ( e ) Judicial Proceeding” Requirement is Satisfied Because an Impeachment Trial is Such a Proceeding HJC posits that an impeachment trialbefore the Senate is a “ judicial proceeding, ” and that Rule 6 ( ) s “ judicialproceeding” requirementis thus satisfied. HJC App. at 28. 16 DOJ, for its part, rejects the proposition that any congressional proceeding may qualify as a “ judicial proceeding .” DOJResp. at 13 (“ The plain meaningof proceeding' does not include congressional proceedings ." ) (capitalization altered ). This dispute thus presents the threshold issue of whether an impeachment trial in the Senate is a “ judicial proceeding under Rule 6 ( e). Consideration of this issue requires an understanding of ( 1) what the drafters of Rule 6 ( ) meant 16 An impeachmentinquiry in the House may itself constitute a judicial proceeding. See, e. g. , Marshallv. Gordon, 243 U . S. 521, 547 ( 1917) (characterizinginstanceswhen a “ committee contemplat[ es] impeachment” as times that congressionalpoweris “ transformed into judicial authority ; Kilbourn . Thompson, 103 U . S . ( 13 Otto) 168, 191( 1880) (explaining that the House“ exercisesthe judicialpower . . . of preferringarticlesof impeachment Trump v. MazarsUSA , LLP, No. 19-5142, WL5089748, at * 27 ( D . C . Cir. Oct. 11, 2019) (Rao , J. , dissenting) ( explainingthat the House s “ power to investigate pursuantto impeachment. . . has always been understoodas a limited judicialpower ) . ' s primarycontention, however, is notthat a House impeachmentinquiry is a judicial proceeding, but that HJC ' s currentinquiry satisfies Rule ( e) because that inquiry is “ preliminar[ y ] to ' impeachmenttrial.” App . at 29 (alteration in original) . As explained infra in Part III. B . , HJC' s “preliminarilyto” argumentsucceeds, and, consequently, whether a House impeachmentinquiry constitutesa “ judicial proceeding within the meaningof Rule ( e ) need notbe addressed. 21 Case 1: 19 - -BAH Document46 Filed 10/ 25/ 19 Page 22 of75 by “ judicialproceeding,” and ( ) the precise nature of an impeachmenttrial. Both considerations are informedby history and, contrary to DOJ s position, pointto the sameconclusion: an impeachment trial is, in fact, a “ judicial proceeding under Rule 6( e), as binding D . C . Circuit precedentcorrectly dictates. 1 The Term “ Judicial Proceeding” in Rule 6 (e) Has a BroadMeaning In the Rule 6 ( e) context, “ [ t ] he term judicialproceedinghasbeen given a broad interpretation by the courts. ” In re Sealed Motion, 880 F . 2d 1367, 1379 ( D . C . Cir. 1989) (per curiam ). The D . C . Circuit has indicated that “ judicial proceeding might “ include [] every proceeding of a judicial nature before a competent court or before a tribunal or officer clothed with judicial or quasi judicial powers.” . at 1380 ( quoting Jones v. City of Greensboro , 277 S. E. 2d 562 , 571(N . C . 1981), overruled in part on other grounds by Fowler v. Valencourt, 435 S . E .2d 530 ( N . C . 1993) ) ; see also In re North , 16 F . 1234, 1244 ( D . C . Cir. 1994 ) ( quoting In re Sealed Motion , 880 F . 2d at 1380 ); Haldeman v. Sirica , 501 F . 2d 714 , 717 ( D . C . Cir. 1974) (en banc) (MacKinnon , J, concurring in part and dissenting in part) (describing Rule 6 (e ) judicial proceeding as one “ in which due process of law will be available” ); In reGrand Jury Investigationof Uranium Indus. ( In re Uranium Grand Jury), No. 78-mc- 0173, 1979WL 1661 , at * 6 (D . D . C . Aug. 21, 1979) (Bryant, C . J. ) (noting that the “ judicial proceeding” exception authorizesdisclosure of grand jury materialsto a wide variety of officialbodies” ) . 17 17 DOJrelieson the definition firstarticulatedby Judge LearnedHandin Doe v. Rosenberry , 255 F. 2d 118 (2d Cir. 1958) See DOJResp. at 14 15. Thatdefinition provides: “ [ T ] heterm judicialproceeding includesany proceedingdeterminableby a court, havingfor its objectthe complianceof anyperson, subjectto judicialcontrol, with standards imposedupon hisconductin the public interest, even though such compliance is enforced withoutthe procedureapplicableto the punishmentof crime. , 255 F . 2d at 120. DOJ s relianceon thisdefinition is puzzlingsince courts— includingthe D . C . Circuit haveconsistentlyrecognizedthat Judge Hand gave judicial proceeding ” “ a broad interpretation,” In re SealedMotion, 880 F . 2d at 1379, and judges of this Court havealready twice recognized that Judge Hand' s definition encompassesan impeachmenttrial, see In re Report & Recommendationof June 5 , 1972Grand Jury, 370 F . Supp 1219, 1228 – 30 (D . D . C . 1974) (citingDoe) ; In re Uranium Grand Jury, 1979WL 1661, at * 5– 7 (citingDoe) ( explainingthat a Senateimpeachmenttrial“ presided overby the Chief Justice of the UnitedStates” is“ verymuch a judicialproceeding ,” id at * 7 ). 22 Case 1: 19- -BAH In keeping with the term Document46 Filed 10/ 25/ 19 Page 23 of 75 s “ broadmeaning,” disclosure ofgrand jury materialshas been judicially authorized under the “ judicial proceeding” exception in an array of judicial and quasi judicial contexts . Courts, for instance, have determined that attorney disciplinary proceedings are “ judicial proceedings” because such a proceeding is “ designed in the public interest to preserve the good nameand uprightnessof thebar,madeup, as it is, of attorneys who are public officers .” Doe v. Rosenberry, 255 F. 2d 118 , 120 ( 2d Cir. 1958) ; see also, e. g., In re J. Ray McDermott & Co. , 622 F . 2d 166 , 170 ( 5th Cir. 1980). Similarly, courts have permitted disclosure in connection with internal police disciplinary proceedings under the“ judicial proceeding” exception . See, e. g., In re Bullock , 103 F. Supp. 639 641, 643 ( D . D . C. 1952 ). The D . C . Circuit ' s decisions are in accord . The Circuit has held that the following proceedings are eligible for disclosure under Rule ( e ) ( ) “ disciplinary proceedingsof lawyers” conducted by “ bar committees ” United States v. Bates, 627 F. 2d 349 , 351 ( D . C . Cir . 1980) ( per curiam ), ( 2) grand jury investigations themselves, In re Grand Jury, 490 F . 3d 978 , 986 ( D . C . Cir. 2007) (per curiam ) , and ( 3 ) proceedingspursuantto the now - expired IndependentCounselAct, 28 U . S . C . 591etseq. (1987), to determinewhat portions of an independentcounselreportareappropriate for release, see, e. g. , In re SealedMotion, 880 F . 2d at 1380. Additionally, the D . C. Circuit has even indicated that parole hearings might qualify . See In re Sealed Motion , 880 F. 2d at 1380 n . 16 (citing United States v. Shillitani, 345 F. 2d 290 293 ( 2d Cir. 1965) , vacated on other grounds, 384 U . S . 364 ( 1966 )). As these examples illustrate , the term judicial proceeding in Rule ( e ) does not refer exclusively to proceedings overseen by courts exercising the “ judicial Power of the United States” referred to in Article IIIof the Constitution . U . S . CONST. art. III, 1. Plainly, proceedings in state courts are “ judicialproceedings eligible for disclosure of grandjury Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 24 of 75 information . See, e. g., United States v. Colonial Chevrolet Corp., 629 F. 2d 943, 947 & n . 9 (4th Cir. 1980) (notingthatthe court Rule authorize disclosureunder thecircumstancesdetailed in ( e) ( 3 ) ; in fact ithas done so in many cases in support of proceedings in both federal and state judicial, and even in state administrative , proceedings” ) (citingDoe, 255 F . 2d 118; In re Disclosure of Testimony, Etc. , 580 F . 2d 281( 8th Cir. 1978) (authorizing disclosure of federal grand jury material to municipality investigating judicial misconduct ); In re 1979 Grand Jury Proceedings, 479 F . Supp. 93 (E. D . N . Y . 1979) ( authorizing disclosure of federal grand jury material regarding obstruction bymunicipal employees to municipality ) ); In re Petition for Disclosure of Evidence Before Oct., 1959 Grand Jury, 184 F. Supp. 38, 41(E. D . Va. 1960 ) ( citing Doe, 255 F . 2d 118) (“ Wecannotagree with the UnitedStatesthat this phrase refers only to a Federalproceeding . ). Moreover, at the federal level, the judicial power of the United States is not limited to the judicial power defined under Article III.” Freytag v. Comm ’ r of InternalRevenue, 501U . S . 868, 889 (1991) ( citing Am . Ins. Co. v. Canter, 26 U . S . ( 1 Pet.) 511, 546 (1828) . The United States Tax Court, for example, “ is not a part ofthe Article III Judicial Branch,” and “ its judges do not exercise the judicial Power of the United States ' under Article III ” Kuretski v. Comm of Internal Revenue, 755 F. 3d 929, 940 ( D . C . Cir. 2014 ). Nevertheless , the Tax Court “ exercises a portion of the judicial power of the United States, Freytag, 501 U . S . at 891, and that judicial power has, in turn, been deemed sufficient to make Tax Court proceedings “ judicial proceedings ” under Rule ( e , see In re Grand Jury Subpoenas Duces Tecum , 904 F .2d 466 , 468 (8th Cir. 1990 ( ] he tax court redetermination hearing satisfies the judicial proceeding requirement. ; Patton v. Comm r of InternalRevenue, 799 F. 2d 166 , 172 (5th Cir. 1986) (“ Clearly a tax court petition for redeterminationis a judicialproceeding themeaning of Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 25 of 75 Rule 6 ( ) (3) [ E ] )(i ). ; United States v. Anderson , No. 05- cr-0066 , 2008 WL 1744705 , at * 2 (D . D . C . Apr. 16 , 2008 ) ( ordering that grand jury materials be shared pursuantto Rule 6 ( e ) ( e ) ( E ) (i ) in connectionwith a “ law suit . . pendingbefore the UnitedStates Tax Court also, e. g. , In reGrand Jury Proceedings, 62 F . 3d 1175, 1180 (9th Cir. 1995) ( indicating that disclosure in connection with tax court litigation would be permissible under Rule ( e) “ upon an adequate showing” ofneed) .18 Accordingly, while judicial power of somekind may be necessary to make a proceeding “ judicial” under Rule (e ), the exercise of Article IIIjudicial poweris notrequired. Notwithstandingthe weight of these precedents, DOJmaintainsthat an impeachment trial cannot be a “ judicial proceeding under Rule 6 (e) because the plain and ordinary meaning of the term refers to “ legalproceedings governed by law that take place in a judicial forum before a judge or amagistrate.” DOJResp. at 2; see also id . at 13 ( By its plain terms, the phrase judicialproceeding meansa matter that transpires in court before a neutral judge according to generalized legalrules. . This plain -meaning argument ignores the broad interpretation given to the term “ judicial proceeding” as used in Rule 6( ), see, e.g., In re Sealed Motion, 880 F. 2d at 18 Even the SupremeCourt, in Baggot, recognizedthat Tax Court proceedingsare “ judicial proceedings” under Rule ( e ). Although purportingnotto address theknotty questionofwhat, ifany, sorts of proceedingsother than garden- variety civilactionsor criminalprosecutionsmightqualify as judicial proceedingsunder ([ E ] ) (i ) ” 463 U . S . at 479 n. 2, the Court advised that the Seventh Circuit correctly held the IRSmay seek ([ E ] ) (i ) disclosure” when a “ taxpayerha[ s] clearly expressed its intention to seek redeterminationof [ a claimed tax] deficiency in the Tax Court” and “ theGovernment's primary purpose is . . . to defend the Tax Court litigation,” at 483 19 DOJalso cites to the use of“ judicial proceeding” in two othersubsectionsof Rule 6( e) ) 3 )( F ) and ( ) 3) G — as generally referringto courtproceedings, DOJResp. at 17, butthis argumentrelieson one ofthe least probative statutory- interpretationpresumptions . Although ] ne ordinarily assumes that identicalwords used in differentparts of the same act are intendedto havethe samemeaning, presumptionof consistentusage readily yields to context, and a statutoryterm . . . may take on distinctcharacters from associationwith distinct statutory objects callingfor differentimplementationstrategies.” . Air RegulatoryGrp. v. EPA, 573 U . S . 302, 319– 20 ( 2014) (internalquotationmarks omitted) (quotingEnvtl . Def. v . Duke EnergyCorp. , 549 U . S. 561 574 (2007)) . Moreover, as HJC explains, subsection (e )( 3) ( F ) may in fact cover a Senate impeachmenttrial, and as to subsection( ) G ), significanttextualdifferences distinguish this subsection from ( ) ) (E ) (i ). See HJC Reply at 12– 13. In any event , historicalpractice andbindingprecedent guide the proper construction of Rule ( e )( )( E ) (i), no matterthe use of term “ judicialproceeding” in other partsof the criminalprocedure rules. 25 Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 26 of 75 1379, and fails to grapple with the judicial nature of an impeachment trial, see infra Part III. A . 2 . In any event, applying DOJs plain-meaning construction and imposing a requirement that a “ judge” preside to qualify as a “ judicial proceeding” would not remove an impeachment trial from Rule 6 ( e ) s ambit since the Chief Justice of the Supreme Court presides over any Senate impeachmenttrialof the President. U . S . . art. I , 3, cl. 6 .20 DOJdismisses the Chief Justice s role in impeachment trials as“ purely administrative, akin to a Parliamentarian, ” whose decisions can beoverridden by a vote ofthe Senate. DOJResp . at 16 . Even if true up to a point, the fact remains that the Senatemay grant the Chief Justiceas significanta role as it sees fit. In sum , “ judicial proceeding, ” as used in Rule 6 (e), is a term with a broad meaning that includes far more than just the prototypical judicial proceeding before an Article IIIjudge. 2 An Impeachment Trialis Judicial in Nature DOJflatly states that no congressional proceeding can constitute a Rule 6 (e ) “ judicial proceeding” because “ [ t ]he Constitution carefully separates congressional impeachment proceedings from criminal judicial proceedings .” DOJResp. at 15. This stance , in service of the obvious goal of blocking Congress from accessing grand jury material for any purpose , overlooks that an impeachment trial is an exercise of judicial power provided outside Article III and delegated to Congress in Article 1.21 Contrary to DOJ' s position — and as historical practice, theFederalistPapers, the text of the Constitution, and SupremeCourtprecedentallmake clear impeachment trials are judicial in nature and constitute judicial proceedings. DOJobserves that impeachmenttrialsofofficials other than the Presidentare presidedover by “ the Vice PresidentorwhicheverSenator is presidingat that time, ” ratherthan by the Chief Justice. DOJResp. at 16. This constitutionalquirk is irrelevantheresince the instantpetition concerns the possible impeachmentof the President. 21 Although RepresentativeCollins, likeDOJ, supports denialof HJC ' s application, he agreeswith [ ] that an impeachmentinquiry . . fall[ under FederalRuleofCriminalProcedure ( e)' s exception because an impeachmentinquiry is “ preliminary to a trial in the U . S . Senate.” 26 proceeding CollinsMem. at 1. Case 1: 19- -BAH Document46 Filed 10/ 25/ 19 Page 27 of 75 “ The institution of impeachment is essentially a growth deep rooted in the ashes ofthe past. ” Wrisley Brown, The Impeachment of the Federal Judiciary , 26 ( 1913) . . L . REV . 684, 685 Itwas “ born of the parliamentary usage of England, ” id. where “ the barons reserved to Parliamentthe right of finally reviewing the judgments ' [ judicature .” Id “ [ ]he assembled parliament ] of all the other courts of represent[ed ] in that respect the judicial authority of the king, ” and“ [ w ]hile this body enacted laws, it also rendered judgments in matters of private right.” Kilbourn v. Thompson, 103 U . S . ( 13 Otto ) 168, 183 ( 1880 ); see also Brown, supra , at 685. (explaining that “ the Parliament the high court of the realm in fact as well as in name”). “ Upon the separation of the Lords and Commons into two separate bodies. . . called the House of Lords and the House of Commons, the judicialfunction ofreviewingby appealthe decisions ofthe courts of Westminster Hallpassed to the House of Lords.” Kilbourn , 103 U . S . ( 13 Otto) at 183–84. “ To the Commons ,” however, “was left the powerof impeachment, and, perhaps, others of a judicial character.” Id. at 184. “ And during the memorable epoch preluding the dawn of American independence,” the English practice of impeachment, “ though seldom put into application, was still in the flower of its usefulness. ” Brown, supra, at687. Duringthe drafting of the Constitution, this English history informed how the Framers approached impeachment, and examination of pertinent FederalistPapers confirmsthat they viewed the impeachment power as judicial. See THE FEDERALIST No. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed. , 1961) (explaining that impeachment in the United States was borrowed” from the “model” “ [ i ] n Great Britain ” ). Alexander Hamilton s writings in Federalist Nos. 65 and 66 are illustrative. The preceding FederalistNos. 62, 63, and 64 had discussedmost of the powers that the new Constitution granted to the Senate . See THE FEDERALIST . 63 Case 1: 19- - BAH Document 46 (probably James Madison) No. 64 (John Jay) Filed 10/ 25 / 19 Page 28 of 75 The only “ remaining powers” to be discussed were those “ comprised in [ the Senate s participation with the executive in the appointment to offices, and in [ the Senate s judicial character, and Hamilton accordingly used Federalist Nos. 65 and 66 to “ conclude” the discussion of the Senate “ with a view of the judicial character of the Senate ” “ as a court forthe trial of impeachments.” THE FEDERALISTNo. 65, supra, at 396 (Alexander Hamilton ). AsHamilton s thinkingon the subject of impeachmentdemonstrates, his choice of the words “ judicial” and “ court for the trial of impeachments ” was purposeful. See Nixon v. United States, 938 F .2d 239 260 (D . C . Cir . 1991) (Randolph, J. , concurring) (“ The inference that the framers intended impeachmenttrials to beroughly akin to criminaltrials is reinforced by seemingly unrefuted statements made by Alexander Hamilton during the ratification debates . aff 506 U . S . 224 ( 1993). 22 For instance , Hamilton described the appointment of officers which is an executivefunction — and impeachment, aspowers given to the Senate “ in a distinct capacity ” from allof the Senate s other powers. THE FEDERALIST . 65, supra , at 396 . By citing those two powers in particular and separating them from all others bestowed on the Senate , he thus conveyed thatthose powerswere, unlike those that camebefore, not legislative. Additionally, when Hamilton considered potential alternative tribunal[s ],” id at 398, thatmight be granted the power of trying impeachments , he considered the primary alternatives to be 22 Indeed, Hamilton' s discussion ofthe Senate s impeachmentpower in FederalistNos. 65 and 66 , uses such judicialtermsrepeatedly and consistently. Hamiltonreferred to the court, the “ courtof impeachments,” and the “ court for the trial of impeachments” a total of seventeen times. THE FEDERALIST . – 66 , supra, at 396 – 407 (AlexanderHamilton). Moreover, when referringto impeachment, Hamilton also used the followingadditional terms associatedwith the judicialnatureof the proceeding “ jurisdiction” once; offense(s) ” or “ offender five times; “ prosecution” or “ prosecutors” three times; “ accused, ” “ accusers, ” “ accusation,” or “ accusing” nine times; “ case(s)” five times; “ decision, ” “ decide, ” or “ deciding” eight times; “ innocence” or “ innocent three times; “ guilt or “ guilty” five times; “ inquest, ” “ inquisitors,” or “ inquiry times; “ tribunal” twice; “ judges” or “ judging” ten times; “ sentence” “ sentenced,” including“ sentence of the law , ” fivetimes; party once “ punishment or punish” seven times; conviction” once; “ ” or “ try ” four times, not counting instances of “ courts for the trial of impeachments ” ; “ verdict( s) ” twice; “ liable” once; and “ charges” once. Id. 28 Case 1: 19- - BAH Document 46 Filed 10/ 25 / 19 Page 29 of 75 assignmentof the power directly to the Supreme Court alone, id. , or assignment to the “ Supreme Court with the Senate, at 399, underscoring the judicial nature of the impeachment- trial power Mostimportantly, when Hamilton addressed the objection that making the Senate the “ court of impeachments ” “ confound[ ed ] legislative and judiciary authorities in the samebody," he accepted the premise that granting the Senate the power to try impeachments produced an “ intermixture” of “ legislative and judiciary authorities.” THE FEDERALIST see also THE FEDERALIST . 66 , supra, at 401; . 81, supra, at482 ( Alexander Hamilton) (noting that there are “ men who object to the Senate as a court of impeachments , on the ground of an improper intermixture of powers”) . Such “ partial intermixture ,” he argued, is “ not only proper but necessary to themutual defense ofthe severalmembers of the governmentagainst each other. ” THE FEDERALIST . 66 , supra, at – 02 . Hepointed out that many states at the timecombined legislative and judicial functions: the New York constitutionmade the New York Senate, “ togetherwith the chancellor and judges ofthe SupremeCourt, not only a court of impeachments,but the highest judicatory in the State, in allcauses, civiland criminal,” id at ; in New Jersey, “ the final judiciary authority (was in a branch of the legislature, ” id at 402 n. * ; and “ [ i ] n New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature [ court for the trial of impeachments , These Federalist Papers leave no doubt that the power to try impeachments was, in Hamilton ' s view , inherently judicial. See Nixon, 938 F . 2d at 261(Randolph , J. , concurring ) (“ From all of [ Hamilton s statements, itcan be reasonably inferred that the framers intended that the Senate would approach its duty of trying impeachments with the solemnity and impartiality befitting judicial action . . . Case 1: 19- Hamilton - BAH Document 46 Filed 10/ 25 / 19 Page 30 of 75 notthe only Founder who conceived of the impeachmentpower as inherently judicial. Notably, JamesMadison shared Hamilton s view . In FederalistNo. 38 , Madison , like Hamilton , noted that a principle objection to the Constitution was the trialof impeachmentsbythe Senate, . . when this power so evidently belonged to the judiciary department. ” THE FEDERALISTNo. 38, supra , at 236 (JamesMadison ). Then , in FederalistNo. 47 ,Madison defended this mixing of powers. In the British system , Madison pointed out, “ the legislative, executive, and judiciary departments are by nomeans totally separate and distinct from each other ” because , inter alia, “ [ o] ne branch of the legislative department . the sole depositary of judicial power in cases of impeachment. ” THE FEDERALIST No. 47, supra , at 302 ( James Madison) (spellingirregularity in original). Suchmixing, he pointedout, occurred in the states as well, such as in New Hampshire, where t he Senate , which is a branch of the legislative department, is also a judicialtribunal for the trial of impeachments,” and in Massachusetts, where “ the Senate , which is a part of the legislature, is a court of impeachment, notwithstandinga declaration in the state s constitution never exercise the . . judicial powers. that the legislative department shall at 304 – 05 (citing also to the “ court for the trial of impeachments” in New York “ consist [ ing ] of one branch ofthe legislature and the principal members of the judiciary department, Delaware, “ id . at 305, and to the “ court of impeachments ” in [ ed] by one branch of the [ legislative department],” id . at 306 ) ). Hamilton and Madison s view is confirmed by the text of the Constitution . By making the Senate the court of impeachments, ” at 306 ; THE FEDERALIST . 65, supra, at 398 ( Alexander Hamilton ), the Framers tasked the Senate with a judicial assignment. Article I uses judicialtermsto refer to impeachmenttrials in three separate instances in the sixth clause of its third section , stating that the Senate is granted “ the sole Power to try all Impeachments ” ; “ [ w ]hen Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 31of 75 the President of the United States is tried , the Chief Justice shall preside” ; “ [ a ]nd no person shall be convicted without the Concurrenceof two thirds of the Members present.” U . S . CONST. art. I, 3, cl. 6 (emphases added ) . The nextclause continues the theme: “ Judgment in Cases of Impeachmentshall not extend further than to removal from Office, and disqualification to hold the Party convicted shallnevertheless be liable and subject to and enjoy any Office . . . [ criminal prosecution] .” Id cl. 7 (emphases added). Article II, meanwhile, prevents the President s power to pardon from extendingto “ Cases of Impeachment ,” art. II, 2 , cl. 1 ( emphasis added ), and allows for removal of the President on Impeachment for , and Conviction of, Treason , Bribery, or other high Crimes and Misdemeanors.” Finally, even Article III despitebeing the article devoted . 4 emphases added ). the judicial” branch reveals that when it comes to impeachment, the Senate takes on a judicial character, for Article III requires that “ [t ]he Trial of all Crimes , except in Cases of Impeachment, shall be by Jury.” Id. art . III, 2 emphases added) . These words employed in the Constitution to describe the Senate s role “ convict,” judgment, , “ trial, crime, ” and “misdemeanor” — are inherently judicial. Any layperson asked whether a constitutionally prescribed “ trial” of a “ case” in order to reach a “ judgment” as to whether a person should be convicted” of a “ crime” or “ misdemeanor, ” is judicialin character, would invariablyansweryes — and rightly so. Cf. Mazars, 2019 WL 5089748, at * 32 (Rao , J., dissenting ) (“ Article I makes clear that in this impeachment ] role, the Senate acts as a court trying impeachable offenses and renders judgment . . . at * 50 (“ Senate trials of impeachmentare an exercise of judicial power . . Black s Law Dictionary confirms this intuition . “ Trial” means “ [ a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding. ” Trial , Case 1: 19- BLACK -BAH Document46 Filed 10 / 25/ 19 DICTIONARY ( 11th ed. 2019) hereinafter BLACK S Page 32 of 75 “ Convict means" t ] prove or officially announce (a criminaldefendant) to be guilty ofa crimeafter proceedingsin a law court ; specif., to find (a person ) guilty of a criminal offense upon a criminal trial, a plea of guilty , or a plea ofnolo contendere(no contest) .” Convict, BLACK ’ . “ Judgment mean either “mental faculty ” or “ [ a] court s final determination of the rights and obligations of the parties in a case” (or, in English law , “ [a ] n opinion delivered by a member of the appellate committee of the House of Lords; a Law Lord s judicial opinion ” ) Judgment, BLACK and in the contextof other words like “ trial” and “ convict, ” the noscitur a sociis canon counsels against adopting the first definition , see Yates v. United States, 135 S . Ct. 1074 , 1085 (2015) (plurality ) (explaining that noscitur a sociis means that “ a word is known by the company itkeeps . “ Case” means as relevanthere, “ [ a ] civil or criminal proceeding, action, suit, or controversy at law or in equity” or “ [ a ]n instance, occurrence, or situation” — again, noscitur a sociis pushes strongly in favor of relying on the first definition here. Finally “ crime” means“ [ a ]n act that the law makes punishable; the breach of a legal duty treated as the subject-matter of a criminal proceeding, Crime, BLACK misdemeanor” means “ [ a ] crime that is less serious than a felony and is usu. punishable by fine, penalty , forfeiture , or confinement (usu . for a brief term ) in a place other than prison ( such as a county jail). ” Misdemeanor, BLACK As these dictionary definitions demonstrate, atevery turn the Constitutionuseswords thatmark the judicialnature of the Senate s power to try impeachments. Notsurprisingly, therefore, the SupremeCourt hasconfirmed, on at least three separate occasions, that the Senate s power to try impeachments is judicial. First, in Hayburn s Case , 2 23 The variation “ high crime” similarly means “ [ a ] crime that is very serious, though not necessarily a felony , ” Crime, BLACK and high misdemeanor historically meant in English law “ [ a] crimethat ranked just below treason in seriousness , Misdemeanor, BLACK . 32 Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 U . S. ( 2 Dall. ) 408 ( 1792) , the Courtquoted a letter from Page 33 of 75 [ t ]he circuitcourt for the district of North Carolina ( consistingof Iredell, Justice, and Sitgreaves, District Judge )” observing that “ no judicial power of any kind appears to be vested to impeachments.” the legislature , but the important one relative Id . at 410 n. * (capitalization altered). Second, in Kilbourn, the Court explained that “ [t ]heSenate . . . exercises the judicial power of trying impeachments. ” 103 U . S. (13 Otto) at 191. Third , in Marshall v Gordon , 243 U . S . 521 (1917 ), the Court noted that congressional contempt power can be “ transformed into judicial authority when a “ committee contemplat[es ] impeachment.” Id . at547 As the foregoing demonstrates, impeachment trials are judicial in nature, notwithstanding theFounders decisionto make the Senatethe court of impeachments.” AsChiefJustice Rehnquist stated, in considering a Senator' s objection to HouseManagers referring to the Senate sittingas triers in a trialof the impeachmentof the Presidentof the UnitedStates, Cong. Rec. S279 (statement of Sen. Harkin ), “ the objection . . . is well taken, that the Senate is not simply a jury ; it is a court in this case, ” id. ( statement of Chief Justice Rehnquist ). “ Therefore, ” Chief Justice Rehnquist continued, “ counsel should refrain from referring to the Senators as jurors .” Id. The views of the Senators participating in the last impeachment trial of a sitting President confirm their understanding oftheir judicial role. See id . at S1584 ( statement of Sen . Leahy) (noting that when “ Senate is the court,” Senators are not merely serving as petit jurors” but“ have a greater role and a greater responsibility in this trial” ) ; id atS1599 ( statement of Sen. Stevens) (noting that “ an impeachment trial is no ordinary proceeding ” and that Senators “ sit as judge and jury rulers on law and triers of fact ; id at S1602 (statement ofSen . Lieberman) (noting that impeachment“ is unique in that it is a hybrid of the legislative and the judicial , the politicaland the legal” ( quoting Senate Rulesand PrecedentsApplicableto Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 Page 34 of 75 Impeachment Trials: Executive Session Hearing Before the S. Comm . on Rules and Administration , 93rd Cong. 193 (1974) (statement of Sen. Mansfield id. at ( statement of Sen . Crapo) ( “ Aseach Senatortook the oath to provideimpartialjustice, . . . [n ] o longerwas the Senate a legislative body, it was a court of impeachment. A unique court , to be sure , not identical to traditional civil and criminal courts , but a court nonetheless . ") . This further supports the conclusion that an impeachmenttrial constitutes“ a judicial proceeding under Rule (e)( 3)( E )(i ) 3 HistoricalPracticeBefore Enactmentof Rule (e ) InformsInterpretationof that Rule Historicalpractice confirms that, contrary to DOJ' s position, Rule 6 ( e ) does not bar disclosure of grand jury information to Congress . Indeed , grand jury investigations have prompted and informed congressional investigations, and Rule 6 ( e) was meant to codify this practice. Several examples illustrate that Congress was afforded access to grand jury material prior to the enactment of Rule 6 (e) in 1946 . In 1902 , a House committee investigated allegations of election fraud in St. Louis, Missouri, based on “ a reportof a grand jury which sat in St. Louis” 24 This analysisdisposesof DOJ' s argumentthat an impeachmenttrialisnot judicial in naturebecause impeachmentproceedings“ are political . ” DOJResp. at 16 . While the House “has substantialdiscretion to define and pursuechargesof impeachment” Mazars, 2019 WL 5089748, at * 28 (Rao, J., dissenting) , the Constitution nevertheless the scopeof impeachableoffenses,” id at * 50 (citing U . S . CONST. art. II, ) ; see id . at * 32 ( mpeachmentaddresses a public official s wrongdoing— treason, bribery, and high crimes ormisdemeanors while problemsof generalmaladministrationare left to the politicalprocess. ; see also 3 Lewis Deschler, Deschler's Precedentsof the House of RepresentativesCh . 14 App hereinafterDeschler The impeachmentof PresidentAndrew Johnson . . on allegationsthat hehad exceeded the power of hisoffice andhad failed to respectthe prerogativesofCongress. ) . ThusHamilton, for instance, viewed an impeachmenttrial' s characteras judicial even while he viewed impeachmentoffenses as “ of a naturewhich may with peculiar proprietybe denominated POLITICAL . ” THE FEDERALIST . 65 (emphasisin original) . Further, while Membersof the U . S . Senate arepolitically accountable, this accountabilitymerely ensuresthat Senators properly exercise their judicial power to try impeachments. See MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENTPROCESS: A CONSTITUTIONALAND HISTORICAL ANALYSIS 110 1996 ) ( M embers of Congress seekingreelectionhave a politicalincentiveto avoid any abuse ofthe impeachmentpower. . . [ hecumbersomenature of the impeachment processmakes it difficult for a faction guided by base personalor partisan motives to impeach and remove someone from office.” ). 34 Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 35 of 75 thata city policeboard in the district apparently had assisted with the election fraud. 2 Asher C . Hinds, Hinds Precedents of the House of Representatives Ch. 40 [hereinafter Hinds] .25 Twenty years later, in 1924 , the Senate launched an investigation of a Senator who had been indicted by a grand jury. 6 Cannon Ch . 188 399. Seeking to ensure that the congressional investigation had access to all information relevant to the allegations, the chairman of the investigating committee “ sen [ t ] a telegram to the presiding judge . . asking for theminutesof the grand jury proceedings, the names of the witnesses, and thedocumentary evidencewhich had gone before the grand jury ,” and subsequently received what he requested. . ( indicating that “ reply to the telegram ” helped the committee compile its listof witnesses, and that “ [ n] o evidence [was left out of the [ Senate committee ] hearings ” ). Again, in 1924, in response to a grand jury report from the Northern District of Illinois implicatingtwo unnamedMembersof theHouse in a matter involvingthe paymentof money, the House directed the Attorney Generalto submit to it“ the namesof the two [Members and the nature of the chargesmadeagainst them . ” Id. . The Attorney General objected to the request, but only insofar as the request would lead to “ two tribunals attempting to act upon the same facts and to hear the samewitnesses atthe same time,” which would result in confusion and embarrassmentand .. . defeatthe ends ofjustice.” Id . Accordingly, the Attorney General 25 Even earlier, in 1811, the House received a “ copy of a presentmentagainst [territorialjudge ] Harry Toulmin , . . . made by the grand jury ofBaldwin County , specifying charges against the said judge, which ” “ in motion” a House “ inquiry” “ looking to the impeachment” of Judge Toulmin . 3 Hinds Ch. 79 2488. Also , in 1921 a Senate committee confronted another allegation of election fraud, and because the committee s investigation post dated a grand jury inquiry , the Senate committee had access to everythingbefore the grand jury which was deemed at all relevant, ” because thematerialhad been introduced at trial to HJC . 6 Clarence Cannon, Cannon Precedents of the House of Representatives Ch. 159 hereinafter Cannon). In these instances, the grand jury information was presumably no longer secret, but Chief Judge Sirica nevertheless deemed the 1811 Judge Toulmin “ precedent to be “ persuasive” when he ordered disclosure of the Watergate grand jury report. See In re Report & Recommendation of June 6 , 1972Grand Jury ( In re 1972 Grand Jury Report) , 370 F. Supp. 1219 , 1230 ( D . D . C . 1974 ) (Sirica, C . ) ( Ifindeed [Rule 6 (e) ] merely codifies existing practice, there is convincing precedent to demonstrate that common-law practice permits the disclosure here contemplated ). 35 Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 36 of 75 assured theHouse that if , acting within its constitutional power (under Article I) to punish its Members for disorderly behavior or to expel such Member, the House request[ ed] thatall the evidence now in the possession of anyone connected with the Department of Justice . . . turned over to [ it] ” he would directall such evidence, statements, and information obtainable to be immediately turned over to the House House. ” to such committee as may be designated by the Id. In 1946 , Rule ( e ) was enacted to codify current practice and not “ to create new law .” In re 1972 Grand Jury Report, 370 F . Supp . at 1229. As the Advisory Committee Notes explain , Rule 6 (e) “ continues the traditionalpractice of secrecy on the part of members of the grand jury , exceptwhen the court permits a disclosure. ” FED. R .CRIM . P. ( 1944 adoption) (emphasis added) ; see also , . g. , Sells Eng Rule 6 (e) “ codifie [ d] the traditional rule of grand jury secrecy (e) advisory committee s note Inc., 463 U . S . at 425 (noting that Haldeman , 501 F. 2d at 716 (MacKinnon, J, concurring in part and dissenting in part) ( observing that Rule 6 (e) “ is a codification oflong- standing decisions thathold to the indispensablesecrecy of grand proceedings . . except where there is a compelling necessity omission in original) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 683 ( 1958))).26 The practice, albeitfairly rare, of sharing grand jury information with Congress at the time of Rule 6 (e ) enactment lends supportto the conclusion thatthis rule, particularly the “ judicial proceedings” exception, is correctly construed to include impeachment trials. This conclusion is bolstered by the fact that these historical examples share a common thread : allegationsof election fraud and punishmentofMembersofCongress. In these “ In the absence of a clear legislativemandate, the AdvisoryCommitteeNotes[ to the FederalRulesof CriminalProcedure) provide a reliablesource ofinsight into themeaningof a rule, especiallywhen, ashere, the rule wasenactedpreciselyas the Advisory Committeeproposed.” UnitedStatesv. Vonn , 535 U . S. 55, 64 n. 6 (2002). 36 Case 1: 19 - -BAH Document46 Filed 10/ 25/ 19 Page 37 of75 situations, as with cases of impeachment , Congressis actingmorein a judicial ratherthan a legislative capacity. As the Supreme Court explained in Kilbourn, when the House “ punish[ es ] itsown members and determin [ es ] their election , ” the House “ partake[ s] ” in some“ degree” of the“ character” of a “ court.” 103 . S. ( 13 Otto ) at 189; see also id . at 190 ( Each House is by the Constitution made the judge of the election and qualification of its members . In deciding on these it has an undoubted right to examine witnesses and inspect papers, subject to the usual rights ofwitnesses in such cases and it maybe that a witness wouldbe subjectto like punishment at the handsof the body engaged in trying a contested election, for refusing to testify, thathe would the case were pendingbefore a court of judicature.” ( emphasesadded)) . Further, the SupremeCourthas stated that the Senate has certain powers, which are not legislative, but judicial, in character,” and that “ [a]mong these is the power to judge of the elections, returns, and qualificationsof its ownmembers. ” Barry v. United States ex rel. Cunningham , 279 U . S . 597, 613 1929) (citing U . S . CONST. art. I, 4. 5 , cl. 1). Binding D . C . Circuit PrecedentForeclosesAny Conclusion Other Than That an Impeachment Trialis a “ JudicialProceeding” The D . C . Circuit hasalready expressly concluded at least twice— in Haldeman v. Sirica and McKeeverv. Barr — thatan impeachmenttrialis a “ judicialproceeding underRule ( e ) , and these decisions bind this Court. See also In re Sealed Motion, 880 F . 2d at 1380 n . 16 ( quoting approvingly a District of Kansas decision noting that Haldeman decided “ disclosure of grand jury material to [ a] House Committee considering impeachment was made preliminarily to or in connection with a judicial proceeding (quoting United States v. Tager , 506 F. Supp . 707 , 719 ( D . Kan . 1979) ) Forty-five years ago , Chief Judge John Joseph Sirica ordered that the Watergate grand jury s reporton the President s conduct (“Watergate Roadmap”) besentto HJC , which was then Case 1: 19- - BAH Document 46 Filed 10/ 25 / 19 Page 38 of 75 engaged in an impeachment-related investigation of PresidentRichard Nixon. See In re 1972 Grand Jury Report, 370 F. Supp . 1219. In ordering that disclosure, Chief Judge Sirica confronted the same issue currently pending in this case : Is an impeachment trial a “ judicial proceeding” within the meaningof Rule 6 (e)? See id. at 1227. Chief Judge Sirica answered , emphatically , yes. “ I ] t should not be forgotten, ” he explained “ that we dealin a matter of the most criticalmoment to the Nation, an impeachmentinvestigation involvingthe Presidentof the United States.” Id . at 1230. “ Certainly Rule 6 ( e) [ could not] be said to mandate” the withholding of such a report from HJC . Id . In Haldeman v. Sirica , the D . C . Circuit , sitting en banc, reviewed Chief Judge Sirica s decision . Two defendants facing charges arising from the same grand jury investigation filed petitions for writs of prohibition or mandamus, asserting that the release of the grand jury s Watergate Roadmap to HJC would adversely affect their rightto a fair trial. Haldeman , 501 F . 2d at 714 – 15 . Notably, by contrast to its position in the instant case , DOJfiled a memorandum before the D . C . Circuit supporting Chief Judge Sirica ' s decision to release the grand jury report to HJC . Id . at 714 The D . C . Circuitagreed with Chief Judge Sirica , DOJ, and the grand jury , and thus allowed the disclosure of grand jury materials to HJC to occur. In so doing, the Circuit rejected the petitioners ' argument that “ the discretion ordinarily reposed in a trial court to make such disclosureof grand jury proceedingsashedeemsin the public interestis, by the termsofRule 6 (e ) of the FederalRules of Criminal Procedure, limited to circumstances incidental to judicial proceedings and that impeachment does not fall into that category .” Id . at 715. The Circuit determined that Rule (e) presented no obstacle to the disclosure that Chief Judge Sirica had ordered: “ Judge Sirica hasdealt atlength with this contention . . . 38 his filed opinion. We are in Case 1: 19- - BAH Document 46 Filed 10/ 25 / 19 Page 39 of 75 general agreement with his handling of these matters, and we feel no necessity to expand his discussion .” One judge Judge MacKinnon — wrote separately in Haldeman, agreeingthat Rule 6 ( e)' s judicial proceedingexception authorized the disclosure. See id. at 717 (MacKinnon, J. , concurring in part and dissenting in part) . In fact, hepointed out that “ a ] t oral argumentthe prosecutor represented that this disclosure of the grand jury materialto the House Judiciary Committee and eventually possibly to the House and Senate is beingmade preliminarily to ( and) in connectionwith a judicialproceeding, ' and explained thathis “ concurrence in the release of the grand jury materialha[ d ] taken this representation into consideration.” Id. ( quoting FED. R . CRIM. P. 6 ( e)) . For JudgeMacKinnon, the problem with Chief Judge Sirica s decision was that it had not gone far enough in disclosing grand jurymaterial to HJC. See id. at 716 (“ I would . . . permit the House Judiciary Committee . . to have access not only to the limited testimony accompanying the report and index but to the entire grand jury proceedings under supervision of the court . . . Haldeman has stood the test of time. Earlier this year , in fact, the D . C . Circuit turned back to Haldeman in McKeever. The primary issue in McKeeverwas whether courts possess inherentauthority to disclose grand jurymaterials, and the Circuit answered that question in the negative. 920 F. 3d at 850. TheMcKeever dissent, though , argued that the majority ' s decision conflicted with . On the dissent s reading, Chief Judge Sirica s decision had been an exercise of inherent authority , and Haldeman , in turn , “ affirmed [Chief Judge Sirica s understandingthat a districtcourt retainsdiscretion to release grand jury materialsoutside the Rule 6 (e ) exceptions. ” Id . at 855 (Srinivasan , J., dissenting) In response , the McKeever 27 DOJ relies on a footnote from a prior decision of this Court , see DOJResp. at 14 15 quoting In re Application to Unseal Dockets Related to the Independent Counsel s 1998 Investigation of President Clinton, 308 F. Case 1: 19- -BAH majority acknowledged “ ambigu ity Document46 Filed 10/ 25/ 19 Page 40 of 75 in Haldeman s reasoning, but the majority opted to read ] the case to cohere, ratherthan conflict, with the Supreme Court and D . C . Circuit precedents” that formed the basis for the McKeeverholding. Id . at 847 n. 3 (majorityopinion). Accordingly , the Circuit “ read Haldeman as did Judge MacKinnon in his separate opinion concurring in part, as fitting within the Rule 6 exception for judicial proceedings. Together, Haldeman andMcKeever hold that an impeachmenttrialis a “ judicial proceeding under Rule ( ), and these decisions bind this Court . See Save Our Cumberland Mountains , Inc. v. Hodel, 826 F. 2d 43, 54 (D. C . Cir. 1987) (Ginsburg, Ruth B ., J., concurring) ( explaining that D . C . Circuit law is binding“ unless and until overturned by the court en bancor by Higher Authority” ) , vacated in part on reh other grounds, 857 F. 2d 1516 (D . C . Cir. 1988) (en banc). These decisions alone require ruling in HJC s favor on the threshold requirement that an impeachment trial is a “ judicial proceeding” within the of Rule 6 (e ). Indeed, in addition to Chief Judge Sirica and the Haldeman Court, every other court to have considered releasing grand jurymaterial to Congress in connection with an impeachment investigationhas authorized such disclosure. See Order, In Re: Grand Jury Investigation of U. S. Dist. Judge G . Thomas Porteous, Jr., No. 2: 09 -mc- 04346 -CVSG ( E. D . La. Aug. 6 2009), summarily aff sub nom . In Re Grand Jury Proceeding, No. 09- 30737 (5th Cir. Nov. 12, 2009) ; In reGrand Jury Proceedings of Jury No. 81- 1(Miami), 669 F. Supp. 1072 (S.D . Fla. 1987), affd sub nom . In reRequest for Access toGrand JuryMaterials (Hastings), 833 F.2d 1438 ( 11th Cir. 1987). Supp. 3d at 318 n. 4 ), for a plain reading of the term “ judicial proceeding” as precludingapplication to a congressionalproceeding, butthe cited decisionread Haldeman, like Judge Srinivasan, as “ allow [ ing] for district courtdisclosures beyondRule 6( e) ' s exceptions,” Mckeever, 920 F .3d at 853 (Srinivasan, J. , dissenting) . The Mckeeverpanelmajority read Haldeman differently to includeimpeachmentproceedingswithinthe judicial proceeding exception, and that readingnow controls. 28 DOJdescribesas “ telling[ ] ” that rulemakersdid notinclude the possibility that a congressionalproceeding could constitutea judicial proceeding, even though” the 1983 amendmentsto Rule ( e)( 3 )( E ) (i ) 40 dated Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 41of 75 DOJstrains to distinguish Haldeman andMcKeever with arguments that are simply unpersuasive. Asto Haldeman, DOJfocuses on the proceduralposture , claiming that “ [t ]he issuedecided in that case was whether the petitioners had shown that the district court s order was a clear abuse of discretion or usurpation of judicial power' from which the petitioners had a clear and indisputable right to relief,” and thus “ it is unsurprising that the D . C Circuit was able to deny the petition without engagingin any analysis of Rule (e)' s terms. DOJ Resp. at 3 ( first quoting Bankers Life & Cas. Co . v. Holland, 346 U. S . 379, 383 ( 1952) ; then quoting McKeever , 920 F . 3d at855 (Srinivasan, J., dissenting ) ) ; see Hr g Tr. at 87: 24 – 88: 1 (“ That page-and-a -half decision talked about the standard of review beingthe extraordinary writ ofmandamus seven times in the opinion . . . . DOJ misreads Haldeman. When discussing Rule (e) , the mandamus standard is notmentioned, although this standard comes up repeatedly in other parts of the opinion . Instead , after explaining that Chief Judge Sirica had “ dealt at length ” with whether an impeachment trial is a judicial proceeding, the Haldeman Court expressed “ general agreementwith his handling of thesematters. 501 F. at 715. This “ agreement was so strong, in fact , that the Haldeman majority felt “ no necessity to expand [ Chief Judge Sirica s discussion,” id., thereby subscrib [ ing] to Chief Judge Sirica s rationale for his disclosure order,” McKeever , 920 F. 3d at 854 (Srinivasan , J., dissenting ) (describing Haldeman as having “ ratified” Chief Judge Sirica s decision ). 29 Notably , despite the affirming Haldeman.” DOJResp. at 18 n . 12. If any inference can be gleaned from leaving the judicial proceedingexception unchanged, however, the correct inference is that Congress the earlierjudicial constructionof th [ e ] phrase, Helsinn Healthcare S . A . v . Teva Pharm. USA, Inc. , 139 S . Ct. 628, 633 – 34 (2019), namely: that disclosure of grand jury material to Congress for an impeachmentinvestigationwas already authorized by this exception. 29 DOJcharacterizesthe Haldemanmajority' s “ generalagreement with Chief Judge Sirica s reasoning as indicatingmerely that themajority believed any error in Chief Judge Sirica s analysis did notmeritreversal in light of the deferential standard of review , DOJResp. at 21 (internalquotationmarksomitted) ( quotingHaldeman, 501 F. 2d at 715), but appellatecourts are notcoy aboutacknowledgingwhen decisionsturn on standardsof review , see, e. g . , PalletCos. v. NLRB, 634 Fed. App x 800, 801 (D . C . Cir. 2015) (per curiam ) (“ Particularly in light ofour deferentialstandard of review , we haveno basis to disturb that credibility judgment. ; Judgment, Giron v. McFadden, 442 Fed. App 574, 575 ( D . C . Cir. 2011 ) (“ Particularly in lightofthe deferentialstandard of review , 41 Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 Page 42 of 75 language in Haldeman, DOJhas gone so far as to say here thatRule ( e ) did not in fact authorize the disclosure of the grand jury s Watergate Roadmap, which Chief Judge Sirica ordered disclosed to HJC during the impeachmentinvestigation of PresidentNixon. SeeHearing Tr. at 89:21 90 2 . DOJ also discounts McKeever' s analysis of Haldeman as mere dicta , contending that McKeever “ did notrule on the meaningof the term judicial proceeding, because “ it was undisputed that the historical grand jury information at issue fell entirely outside Rule (e ). ” DOJResp. at 2. Again , DOJis wrong. McKeever s interpretation of Haldeman was “ reasoning essential to the Court s holding.” Apprendiv. New Jersey, 530 U . S . 466 , 488 n. 14 (2000 ) (quoting id at 536 (O Connor, J., dissenting)) . Haldeman after all, was an en banc decision. If Haldeman had been decided on inherent authority grounds, the McKeever panel would have had no choice butto apply that precedent faithfully. TheMcKeeverpanel recognized asmuch; indeed, this argument was the sole subject of the dissent. See 920 F . 3d at 847 n. 3 ( ] ur dissenting colleague cite [ s] Haldeman . . as stepping outside the strict bounds of Rule e). ; id at 853– 55 (Srinivasan, J., dissenting). Thus, when the McKeevermajority “ read Haldeman as did Judge MacKinnon in his separate opinion concurring in part, as fittingwithin the Rule 6 exception for judicial proceedings, ” id. at 847 n. 3 (majority opinion) , the majority made that interpretation the binding law in this Circuit .30 wehold that theDistrictCourt did notabuseits discretion . . . . decision below . The HaldemanCourt did the latter. rather than straightforwardapprovalof the When queried aboutreconciling ' s currentposition with itshistoricalsupport of providing grand jury materials to Congress for use in impeachmentinquiries, DOJresponded that its position has evolved.” Hr g Tr. at 85:24 . Nomatterhow glibly presented, however, an “ evolved” legal positionmay be estopped. “ [ W ] here a party assumesa certain position in a legalproceeding, and succeedsin maintainingthat position, hemay notthereafter, simplybecausehis interestshave changed, assumea contrary position . . . Hampshirev. Maine, 532 U . S . 742, 749 (2001) ( alteration in original) (internalquotationmark omitted) (quotingDavis v. Wakelee, 156 U . S. 680, 689 ( 1895)). This rule also applieswhen a party, includinga governmentalentity, makes claim in a legal proceedingthat isinconsistentwith a claim taken by thatparty in a previousproceeding.” Id. at 749 ( internal quotation mark omitted), see also id. at 755 – 56 (applying estoppelto a state government). Here, DOJhas changed 42 Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 Page 43 of 75 Most troubling, DOJ s proposed reading of “ judicial proceeding” raises constitutional concerns. DOJpolicy is that a sitting Presidentcannotbe indicted, OLC Op. , which policy prompted the Special Counsel to abstain from “mak [ing] a traditional prosecutorialjudgment or otherwise “ draw [ing] conclusions aboutthe President' s conduct. ” Mueller Report at II 8 . This leaves the House as the only federalbody thatcan act on allegationsofpresidential misconduct. Yet, under DOJ' s reading of Rule6 ( e), the Executive Branch would be empowered to wall off any evidence of presidential misconduct from the House by placing that evidence before a grand jury. Rule 6 (e) must notbe read to impede the House from exercising its “ sole Powerof Impeachment.” U . S. CONST. art. I, 2 , cl 5 ; cf. Trump v. Comm. on Oversight and Reform of U . S. House of Representatives, 380 F . Supp. 3d 76 , 95 (D . D . C . 2019 ) (“ It is simply not fathomable that a Constitution that grants Congress the power to removea President for reasons including criminal behavior would deny Congress the power to investigate him for unlawfulconduct ), affd sub nom. Trump v. Mazars USA, LLP, . 19-5142 2019 WL 5089748 (D . C . Cir. 2019 ). its longstandingpositionregardingwhetherimpeachmenttrials are “ judicialproceedings” and whether Haldemanso held. In Haldeman itself, the specialprosecutorargued for disclosureof the grand jury materialsand represented thatthis disclosure of the grand jury materialto theHouseJudiciary Committeeand eventually possiblyto the House and Senate beingmade preliminarily to ( and in connectionwith a judicialproceeding.” Haldeman, 501F . at 717 (MacKinnon, J. concurringin part and dissentingin ) ( quoting FED. R . . P . (e )). Similarly, when grand jury materialwas released to HJC duringthe impeachmentsof Judges Hastings and Porteous, DOJ raised no objections. See Hastings, 833 F .2d at 1441-42 ( he Departmentof Justice hasstated thatit has no objection disclosureto the Committee. ; Order, In Re: Grand Jury Investigationof U . S. Dist. Judge G . ThomasPorteous, . , No. 2 :09-mc-04346- CVSG, at 2 (“ DOJdoesnot oppose the request. . Mostimportantly, in McKeeveritself DOJsuccessfullyargued— just lastyear— that the D . C. Circuithas treated Haldeman as standing only for theproposition that an impeachmentproceedingmay qualify as a judicialproceeding' for purposesof Rule 6 ( e) ” see Brief for Appellee at 37, McKeever, 920 F . 3d 842 (No. 17 -1549), and the D . C . Circuitagreed, see McKeever , 920 F. 3d at 847n . 3 . DOJ position hashad a speedy evolutionindeed. Nevertheless, since DOJ's readingofHaldeman andMcKeeverfails on the merits, further consideration of whether s new position is estopped is unnecessary. 43 Case 1: 19 - -BAH Document46 Filed 10/ 25/ 19 Page 44 of75 As the foregoing analysis shows, a Senate impeachmenttrial is a “ judicial proceeding within the meaningof Rule 6 ( ). Quod erat demonstrandum . B. HJC ' s Consideration of Articles of Impeachment is “ Preliminarily To” an Impeachment Trial Rule 6 ( ) ( 3 ) ( E ) (i ) s authorization of disclosure preliminarily to or in connection with a judicialproceeding” is“ an affirmative limitation on the availability ofcourt- ordered disclosure of grand jury materials.” Baggot, 463 U . S. at 480. Thus, “ [ i] f the primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure under ([ E ] ) (i) is not permitted.” Id . For HJC ' s current impeachment -related proceedings to qualify as “ preliminarily to . . a judicial proceeding” and disclosure to be permissible , HJC must be engaged in an investigation that is “ related fairly directly to” an “ anticipated ” impeachmenttrial. Id . As explained in more detailbelow , the “ primary purpose,” id. , of HJC ' s investigation is to determinewhether to recommendarticlesofimpeachmentand HJC therefore satisfies this prerequisite for disclosure . 1. GoverningLegalPrinciplesDemonstrate ThatHouseProceedingsCan be " Preliminarily To a Senate ImpeachmentTrial The SupremeCourt has addressed the issue of how to apply Rule ( e)' s “ preliminarily to” requirement only once, in Baggot. There, the Court addressed two situations one thatmet the “ preliminarily to ” requirement, and one that did not. First, the Supreme Court considered an InternalRevenue Service ( IRS”) “ audit of civil tax liability ,” the purpose of which was “ not to prepare for or conduct litigation, butto assess the amount of tax liability through administrative channels.” . This failed the “ preliminarily to” test because , even [a ] ssuming arguendo that this audit will inevitably disclose a deficiency ” “ [t ] he IRS s decision islargely self- executing , in the sense that it has independentlegal force of its own, withoutrequiringprior validation or enforcement by a court.” Id. at 481. By contrast, the Court discussed a second situation where 44 Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 Page 45 of 75 the IRS had closed its audit and issued a notice of deficiency, and the taxpayer had clearly expressed its intention to seek redetermination of the deficiency in the Tax Court. ” Id. at 483. In that second situation, the Supreme Court explained the Seventh Circuit “ correctly held . . . that the IRSmay seek [Rule 6 ( ) (3) ( E ) (i )] disclosure because “ [ i ]n such a case, the Government' s primary purpose is plainly to use the materials sought to defend the Tax Court litigation, rather than to conduct the administrative inquiry that preceded it.” Id. (citing In reGrand Jury Proceedings (Miller Brewing Co.), 687 F . 2d 1079 (7th Cir. 1982)). Between these two situations, a myriad of alternative circumstances is possible. The SupremeCourt abstained, however, in footnote 6 , from defining precisely the level of likelihood oflitigation that must exist before an administrative action is preliminary to litigation. ” Id. at 482 n.6 . In so doing, the Court acknowledged, in practical terms, how investigations evolve to reach the point of contemplating litigation , stating: [ a ]s a general matter, many an investigation , begun to determine whether there has a violation of law , reaches a tentative affirmative conclusion on that question ; at that point, the focus of the investigation commonly shifts to ascertaining the scope and details of the violation and building a necessary enforcement action . case in support of any Id . ( emphasis in original). Given these practical realities, the Court declined to specify how firm the agency' s decision to litigatemust be before its investigation can be characterized as preliminar [ y] to a judicial proceeding,”” id . ( alteration in original noting that in the case before it, the Court was confronted with a “ clear” case of the “ IRS s proposed use” being to “ assess[ ] taxes ratherthan to prepare for or to conduct litigation, at 483. The D . C . Circuit similarly has had limited opportunity to consider application of the “ preliminarily to ” requirementin Rule 6 (e ). Post-Baggot, the D . C . Circuit hasmade clear that “ a party requesting grand jury materialmustdemonstrate that his primary purpose for acquiring 45 Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 Page 46 of 75 thematerialis preliminary to or in connection with a judicial proceeding. ” In re SealedMotion, 880 F. at 1379 n. 15. 31 As suggested by Baggot s footnote 6 , the D . C. Circuit has further indicated that an investigation can be “ preliminarily to” a judicial proceeding even though no litigation is actually pending butmay only be possible.” In re Grand Jury , 490 F . at 986 (holding that grand jury investigation satisfies the “ preliminarily to ” test as “ preliminary to a possible criminal trial” ). DOJactually makes little effort to dispute that if an impeachment trial is a judicial proceeding, the House s consideration of articles of impeachment is preliminary to” that proceeding at least in some circumstances . DOJResp. at 26 , n . 15 ; see id . at 24 – 30 . DOJis wise not to waste much energy on that argument . To the extent the House s in the impeachment context isto investigatemisconductbythe President and ascertain whether that conduct amounts to an impeachableoffensewarrantingremovalfrom office, theHouse performsa function somewhat akin to a grand jury. See In re 1972Grand Jury Report, 370 F . Supp. at 1230 ( stating that House “ acts simply as [a ] grand jury. ; Hinds Ch. 72 2343 ( The analogy between the function of the House in this matter referring to 1804 impeachmentof Justice Samuel Chase] and that of a grand jury was correct and forcible.” ) ; id. Ch. 54 explaining in the context of an 1818 “ inquiry into the conduct of clerks in the Executive Departments” the House was in the relationof a grand jury , to the nation, and that it was the duty of the House to examine into theconduct of public officers” ); id . Ch. 79 2505 (explaining in 1873 during the impeachment of Judge Delahay that “ [ t ] he Senate is a perpetual court of impeachment , and in 31 Atleast two other circuitshavereached the sameconclusion. See Patton v. C . I. R. , 799 F. 2d 166 , 172 (5th Cir. 1986 ) (“ In Baggot, the SupremeCourtobserved that Rule [ 6 (e) (3) ( E )( i)] contemplatesonly uses related fairly directly to someidentifiable litigation, pendingor anticipated, ' as measured by the primarypurposeof the disclosure. quotingBaggot, 463 U . . at480 ) ; In re Barker, 741F .2d 250 , 254 (9th Cir. 1984) (“ UnderBaggot, the properinquiry is whether the primary purposeofthe disclosureis to assist in the preparationor conductof judicialproceedings . ” ). 46 Case 1: 19- -BAH Document46 presenting these articles we act only as a grand jury Filed 10 / 25/ 19 Page 47 of 75 ; Mazars, 2019 WL 5089748, at * 32 (Rao , J. , dissenting) (“ In the context of an impeachment inquiry, the House serves as a kind of grand jury , investigating public officials for misconduct. ) ; cf. Jefferson 's Manualof Parliamentary Procedure 615a (“ Jefferson 's Manual ( [ The English House of Commons] havebeen generally and more justly considered as is before stated , as the grand jury . ) Accordingly, just as a grand jury investigation is “ preliminary to a possible criminal trial, In re Grand Jury, 490 F . at 986 , a House impeachment inquiry occurs preliminarily to a possible Senate impeachmenttrial. 2 HJC s Primary Purpose is to Determine whether to Recommend Articles of Impeachment HJC s investigationis in fact preliminarily to ” an impeachmenttrial because its primary purpose is to determine whether to recommend articles of impeachment. Before detailing how the record of House and HJC impeachment activities verifies this primary purpose, Representative Collins' proposed criteria for meeting the “ preliminarily to” test are considered and, due to their critical shortcomings, rejected. s Proposed Preliminarily To Test is Contrary to Baggot Despite the clarity with which the Supreme Court “ decline [ d ], ” Baggot, 463 U . S. at 482 n. 6, to draw the line when an investigation becomes “ preliminarily to . . judicial proceeding,” DOJrelies heavily on Baggotto contend thatHJC' s inquiry fails to cross thatline. SeeDOJ Resp . at 24 – 25. In this vein, DOJconstrues Baggot as requiring HJC to show that its 32 The grand jury analogy is not perfect. See 145 Cong. Rec. S1586 ( 1999) (statementof Sen. Leahy) ( noting thatthe analogy between theHouse and a grandjury is ( quotingBackgroundand History of Impeachment : HearingBeforethe Subcomm. On the Constitution of the HJC , 105th Cong. , XX S . Doc. 106 - 3 at 228 (statementof LaurenceH . Tribe) ( 1998)) When theHouse decides whether to impeach, it functionsas more than a “mere accuser. “ The House s constitutionalresponsibility for chargingthe Presidentshould notbemisinterpretedto justify applyingonly a grand jury 's cause standard ofproof.” Id. at S1587. Rather, “ Members who vote to impeach should also be convinced th[ e ] Presidenthas so abused the public trustand so threatensthe public that he should beremoved.” Id. 47 Case 1: 19- - BAH Document 46 Filed 10/ 25 / 19 Page 48 of 75 investigation “ must lead to referral of articles of impeachment to the floor of the House, ” id . at 25, and further that “ referral of articles of impeachment ofthose dual lead to a Senate trial,” id . Short of action in the House and in the Senate, DOJposits thatHJC ' s investigation amounts only to “ a] nonlitigative function, ” at 27 (quoting Baggot, 463 U . S . at 483) , with only a “ tenuous” connection to an impeachmenttrial, id at 25 which is “ entirely hypotheticalrather than likely to emerge, id at 29 (quoting Baggot, 463 U . S . at 480)) . The line-drawing suggestedby DOJ— requiringdualshowingsof theHouse s intention to pass articles of impeachment plus a guaranteed Senate impeachment trial ignores first the Supreme Court s expressed appreciation that, even in the midst of an investigation, the focus can shift to building a case” and then qualify as preliminarily to “ anynecessary enforcement action.” Baggot, 463 U . S . at 482 n. 6 . Nor is s requirement of a guarantee of a Senate impeachment trial grounded in Baggot. Baggotmade clear that the requisite judicial proceeding need notbe subject to initiation bythe party seeking disclosure or pending at the time of the requested grand jury disclosure; the proceeding need only be “ anticipated ” id. at 480 , or “ possible, ” In re Grand Jury 490 F . hold that at 986 ; see Baggot, 463 U . S. at 482 –83 ( We also do not . a private party who anticipates a suit . never obtain ( [ E ])(i) disclosure of grand jury materials any time the initiative for litigating lies elsewhere . Nor do we hold that such a party must alwaysawait the actual commencementof litigation before obtaining disclosure .”) . Thus, s proposed criteria to demonstrate a “ primary purpose an impeachment inquiry are rejected . DOJalso reasons thatHJC ' s proceedingshere are not“ preliminarily to” impeachment because “ the Committee s actions thus far . mostamountto an exploratory inquiry where 48 Case 1: 19- -BAH Document46 impeachment is one ofmany possible outcomes.” Filed 10/ 25/ 19 Page 49 of 75 DOJResp . at 24. that only some congressional committee investigations are Even if DOJwere correct preliminarily to ” an impeachment trial, see In re Uranium Grand Jury , 1979 WL 1661 , at * 7 (determining thatRule 6 ( e) is not satisfied where a House committee “makes a somewhat vague assertion that one of the reasons it needs to examine the transcripts is that itmightresult in its recommendation to the House Judiciary Committee that impeachmentproceedingsbe initiated ) , DOJis wrong in this instance, as detailed infra in Part III. B . 2 .C . b NoHouse “ Impeachment Inquiry Resolution isRequired Relatedly, Representative Collinsasserts that s investigation cannot be “ preliminarily to ” an impeachmenttrialuntilthe full Housepasses a resolutionauthorizinga “ formal impeachment proceeding. ” Collins Mem . at 1. DOJ equivocates on this proposed bright line test to meet the “ preliminarily to ” requirement, Hr Tr. at 69: 10 – 11, but seems to indicate that the Housemust go at least that far, see DOJResp. at 28 . Like allbright-line rules, this “ House resolution ” test is appealing in terms ofbeing easy to apply . Yet, the reasoning supporting this proposed test is fatally flawed. The precedentialsupport cited for the “ House resolution” test is cherry-picked and incomplete, andmore significantly, this test has no textual support in the U . S . Constitution, the governing rules of the House, or Rule ( e ) , as interpretedin binding decisions. 33 Someof arguments regardingwhether HJC meetsthe “ preliminarily to” test have been mooted due to developmentsin the possible impeachmentof President Trump since the pendingapplication was filed. DOJ, for instance, initiallyargued that statementsby the Speakerand the HouseMajority Leadershowed that “ the House Democraticcaucus was‘ not even close to an impeachmentinquiry. DOJResp. at 27 ( quoting Rep. Nancy Pelosi ( D - CA ) Continues ResistingImpeachmentInquiry, CNN (June 11, 2019), http :/ / transcripts. cnn. com / TRANSCRI PTS/ 1906/ 11 / cnr. 04html ) . Thatmay have been true in June, butnotnow , after theSpeaker herself announced in September that the full House is “ moving forwardwith an officialimpeachmentinquiry. Pelosi Remarks AnnouncingImpeachment Inquiry (Sept. 24, 2019), https: // perma.cc/6EQM - 34PT hereinafterPelosi Tr. . 49 Case 1: 19- -BAH Document46 Filed 10/ 25/ 19 Page 50 of 75 Turning first to the arguments that stem from precedent, DOJand Representative Collins state that the “ impeachments of Presidents Clinton and Andrew Johnson were investigated in multiple phases with each phase authorized by the House s adoption of resolutions.” DOJ Resp . at 28 ; see also CollinsMem . at 9 12 stating that for presidentialimpeachments, including the likely impeachmentof PresidentNixonhad he not resigned, “ the fullHousevoted to authorize impeachment proceedings” ). Even were this statement accurate, which it is not, themanner in which the House has chosen to conductimpeachmentinquiriesencompassesmore than past Presidents and no sound legal or constitutional reason hasbeen presented to distinguish the House s exercise of impeachment authority for a President from the exercise of such authority more generally Indisputably , the House has initiated impeachment inquiries of federal judges without a House resolution “ authorizing the inquiry . See, e. g., H . R . Rep. No. 101- 36 , at 13 – 16 (1988 (describing proceedings with respectto Judge Walter Nixon leading up to 's recommendation of articlesof impeachment, with no mention of an authorizing resolution); H . R . Res. 320 , 100th Cong. as passed by the House Dec. 2, 1987) (authorizing taking of affidavits and depositionsduringtheimpeachmentinvestigationof JudgeHastings, withoutany formal House resolution for an impeachment inquiry . R . Rep. No. 99 -688, at 3– 7 (1986 ) (describing proceedings with respect to Judge Harry Claiborne leading up to HJC s 34 DOJand RepresentativeCollinsoffer only one argumentfor distinguishingpresidentialand judicial impeachments: that the House “ has delegated initialinvestigatoryauthority for impeachmentto the U . S. Judicial Conferencethrough the passageof the JudicialConductand Disability Actof 1980. CollinsMem at 10 n. 12 (citing 28 U . S. C . 355(b )) ; see also Hr Tr. at 83: 21– 84: 23 (DOJ) (raising similar argument). Yet, duringthe investigationsof Judge Porteousand JudgeHastings, HJC did notrely on the JudicialConferenceto furnish relevant grand jury materialbutinstead petitionedfor and receivedrelevantgrand jury materialdirectly from the courts supervisingthe grand jury investigationsofthe judges at issue. See Hastings, 833 F . 2d 1438 Order, In Re: Grand Jury Investigationof U . S. Dist. Judge G . ThomasPorteous, Jr. , No. 2 :09-mc-04346 -CVSG . Moreover, the impeachmentinvestigationof Justice Douglas, which wentforward without a House Resolution, occurred in 1970 , before the JudicialConductand Disability Actof 1980 was adopted. See FinalReporton Associate Justice William . Douglas, SpecialSubcomm. on H . R . Res. 920 of the House Comm. on the Judiciary, 91st Cong. (1970). 50 Case 1: 19 - -BAH Document46 Filed 10/ 25/ 19 Page 51of75 recommendation of articlesof impeachment, with no mention of an authorizing resolution ; 3 Deschler Ch. 14 5 ( In the case of Justice Douglas, the Committee on the Judiciary authorized a special subcommittee to investigate the charges , without the adoption by the House of a resolution specifically authorizing an investigation. . Furthermore, federal judges have been impeached by the House without a House resolution “ authorizing” an inquiry. See H . R . Res. 87 , 101st Cong. ( 1989) ( impeaching Judge Nixon); H . R . Res. 499 100th Cong. (1988) ( impeaching Judge Hastings) ; H. R . Res. 461, 99th Cong. (1986) ( impeaching Judge Claiborne). In the course of an impeachment proceeding against a federal judge , the House has also obtained grand jury material to assist in an impeachmentinquiry that was not“ authorized” bya specific House impeachment resolution . See Hastings, 833 F. 2d at 1439 (releasing Hastings grand jury information to HJC). Even in cases of presidential impeachment , a House resolution has never, in fact , been required to begin an impeachmentinquiry. In the case of President Johnson, a resolution authoriz[ing] ” HJC “ to inquire into the official conduct of Andrew Johnson” was passed after HJC “ was already considering the subject. ” 3 Hinds Ch. 75 . In the case of President Nixon , HJC started its investigation well before the House passed a resolution authorizing an impeachment inquiry. See 3 Deschler Ch. 14, 15 (Parliamentarian s Note) (noting that even before “ theadoption of the Nixon impeachment- inquiry resolution, “ House Resolution 803, HJC “ had been conducting an investigation into the charges of impeachment against President Nixon ” such as by “ hir[ ing] special counsel for the impeachment inquiry . In the case of PresidentClinton, the D. C . Circuitauthorized the disclosure of grand jury materials to Congress 35 DOJ and Representative Collins both agree that the events leadingup to PresidentNixon ' s resignation are relevant historical precedent for the purpose of the current inquiry, even though PresidentNixon leftoffice before he could be impeached. See Hr Tr. at 71:13– 19 (DOJ) ; CollinsMem . at 9 – 10 . 51 Case 1: 19- on July 7 , 1998, see - BAH Document46 Filed 10 / 25/ 19 Page 52 of 75 App., Ex. Q , Order, In re Madison Guaranty Savings & Loan Assoc., Div. No. 94 - 1 ( D . C . Cir. Spec. Div. July 7 , 1998 ) (per curiam ), ECF No. 1- 18 , even though no impeachmentresolutionhad yet been adoptedand was notadoptedbytheHouse until four monthslater, see H. R . Res. 525 , 105th Cong (1998) (authorizing, on October 8 , 1998, HJC to “ investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach ” President Clinton).36 While close scrutiny of the historical record undercuts that justification for the “ House resolution” test proposed by Representative Collins, themore significant flaw with this proposal is as follows: while this test may address politicallegitimacy concerns, which are best resolved in the political arena , no governing law requires this test not the Constitution , not House Rules, and notRule 6 ( e ), and so imposing this test would be an impermissible intrusion on the House s constitutional authority both to “ determine the rules of its proceedings under the Rulemaking Clause, U . S . ., Art. I , the Impeachment Clause, id. 5 cl. 2 , and to exercise the sole power of Impeachment” under 2 , cl. 5. This Court “ ha s ] no authority to impose,” by judicial order , a particular structure on House proceedings . Mazars, 2019 WL 5089748 , at * 24 . In Mazars, for example , the D . C . Circuit rejected the position that enforcement of a House Oversight and Reform Committee subpoena of a third -party s records related to President Trump and his business associates was inappropriate untilthe “ full House” granted the Committee " express authority to subpoena the President for his personal financial records. ” . at * 24 ( internalquotationmarks omitted) . Citingthe Constitution s RulemakingClause, the D . C . 36 DOJdismisses the example ofthe House s impeachment of President Clinton, contending that the then operative Independent Counsel Act provided independent authorization for disclosure of grand jury material to Congress . DOJResp. at 22 – 23. Putting aside whether DOJ correctly reads the now -lapsed independent counsel statute, this contention only confirms that full House impeachment resolutions have not been a necessary predicate for HJC to commence an impeachment investigation and obtain access to grand jury material to assist in that investigation . Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 53 of 75 Circuit explained that “ unlessand until Congressadopts a rule that offends the Constitution, the courts get no vote in how each chamber chooses to run its internal affairs. ” Id.; see also Barker v Conroy, 921F. 3d 1118, 1130( D . C . Cir. 2019) (noting that “ making the Rules . . that the Rulemaking Clause reserves to each House alone” ] a power (quoting United States v. Rostenkowski, 59 F .3d 1291, 1306 07 ( D .C . Cir. 1995) . This Court likewise lacksauthority to require the House to pass a resolution tasking a committee with conducting an impeachment inquiry Representative Collins shifts gears with an alternative challenge to HJC s petition , contendingthat, even if no House rule prohibits HJC from beginning an impeachment investigation without a House resolution , the House has not “ delegate [ d ] such authority to the Committee,” and HJC hasno powers except those expressly granted to it. CollinsMem . at 6 . Pressing this point, he argues that the House has thus far delegated only “ legislative and oversight authority to the Committee, ” not impeachmentauthority, at 5 , and , further, that the Speaker of the House maynot “ unilaterally delegate to the Committee the House s impeachmentpower, at 13– 14. These contentionsare, atworst, redherrings and, at best, incorrect At the outset, the distinction drawn by Representative Collins between Congress s “ legislative and oversight authority ” and Congress ' s “ impeachment authority , is not so rigid as hemakes out. Nothing“ in the Constitution or case law . . . compels Congress to abandon its legislative roleatthe first scentofpotentialillegality and confineitself exclusively to the impeachment process. ” Mazars, 2019 WL 5089748 , at * 18. 37 In any event, the House has 37 The distinction between Congress legislativeand impeachmentauthority, even ifotherwise sound, has questionablerelevance to the Rule 6 ( e) analysis. The “ preliminarily to ” requirement dependson the “ primary purpose disclosurewould serve, notthe source of authority Congressacts under. 53 Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 54 of 75 sufficientlydelegated to HJC the authority to conductan impeachmentinquiry in at leasttwo ways. Jefferson' sManual— which under House Rule XXI“ govern [ s] the House in all cases to which [ it is applicableand in which [it is not inconsistentwith theRules and ordersofthe House” — provides that impeachment can be “ set[ ] . motion ” by a resolution introducedby a Memberand referredto a committee” as well as “ facts developed and reportedby an investigating committee of the House.” Jefferson s Manual .38 Additionally , the full House has authorized, in Resolution 430, HJC to bring this suit and simultaneously granted HJC “ anyand all necessary authority under Article I ofthe Constitution.” H .R . Res. 430, 116th Cong. ( as passed by House June 11, 2019 ) (emphases added ).39 Asto RepresentativeCollins' last pointregardingthe Speaker s statement, HJC never claims that the Speaker possesses the power to authorize an impeachmentinquiry solely by saying so . Rather, HJC points to the Speaker s statementas evidence of the primary purpose of HJC s investigation. The Speaker' s statement is, in fact, highly probative evidence on that score.40 Even DOJdoesnotdisputethatstatements madebythe HouseSpeakermay be 38 Jefferson' s Manualis one of the fundamentalsourcematerial [ s ] for parliamentaryprocedureused in the House of Representatives . Thomas J. Wickham, Constitution, Jefferson' sManual, andRules of the House Representativesof the United StatesOne Hundred Fifteenth Congressat v (2017) . 39 Challengeto a specific committeeaction on groundsthatHJC' s authoritywas in doubtwouldbe unreviewable . ]nless and untilCongressadopts a rule thatoffends the Constitution,” judicialreview ofHouse rulesis inappropriate . Mazars, 2019 WL 5089748, at * 24. Here neitherDOJnorRepresentativeCollins complains se rules suffer from a “ constitutional infirmity .” Vander Jagt v. O Neill,699 F .2d 1166 , 1173 (D .C . Cir . 1983) . That distinguishes this case from Tobin v . United States, 306 F .2d 270 (D . C . Cir . 1962) , which Representative Collins heavily relies on ; there the House resolution at issue raised serious and difficult constitutional issues. Id. at 275 ; see also Mazars, 2019 WL 5089748 , at 24 similarly distinguishing Tobin ). 40 Citing Speaker Pelosi s September 2019 statement , Representative Collins also argues that HJC' s investigation is not preliminarily to ” a Senate impeachment trial because the “ impeachment inquiry announced by the Speaker will “ be handled by three other committees and focus narrowly on the Ukraine matter” rather than on allegations in the Mueller Report. Collins Mem 14 (quoting Rachael Blade and Mike DeBonis , Democrats Count on Schiff to Deliver Focused Impeachment Inquiry of Trump, WASH . POST (Sept. 29, 2019 ), https://www .washington post .com / politics/ pelosi-turns-to - schiff -to -lead -house -democrats -impeachment -inquiry -of-trump /2019 /09/ 28/ed6c4608 - e149 - 11e9- 8dc8 -498eabc129a0 _ story .html) . This argument is misguided , first, because Speaker Pelosimade clear that “ six [c ]ommittees including HJC — would proceed with their investigations under that umbrella of impeachment inquiry, ” Pelosi Tr., and thus HJC plainly remains engaged . Second, the current focus on President Trump s interactions with the foreign leader of Ukraine is pertinent , not to the “ preliminarily to Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 55 of 75 probative in evaluating the “ primary purpose” of HJC inquiries, as DOJ too has relied on the Speaker s statements in its arguments about satisfaction of the “ preliminarily to ” requirement. See DOJResp. at 3, 26 – 27. Record of House and HJC Impeachment Activities Here Meets the “ Preliminarily To Test Havingdispatched DOJs and RepresentativeCollins' unsupported criteria for meeting the“ preliminarilyto test, examination ofthe record before the Court is essentialto assess whether HJC has satisfied the actual inquiry : Baggots primary purpose test . AsHJC explains , the purpose of HJC ' s investigation and the requested disclosure is “ to determine whether to recommendarticlesof impeachment ” App. at 3 , and the record evidence supportsthat claim . Determining whether to recommend articles ofimpeachment may not have been the primary purpose of s investigation initially , but that is of no moment “ Congress s decision whether , and if so how , to act “ will necessarily depend on information it discovers in the course of an investigation, and its preferred path forward may shift as memberseducate themselves on the relevant facts and circumstances .” Mazars, 2019 WL 5089748, at * 13. While is“ pursuinga legitimatelegislativeobjective[ it] may investigation to impeachment, . choose to move from legislative at* 18, and that is precisely what occurred here, as a review of the record evidence in chronological order demonstrates. The beginnings of HJC ' s current investigation trace to January 3 , 2019 , when a resolution calling for President Trump s impeachmentwas introduced, see H . R . Res. 13, 116th Cong. (2019 ) , and, in keepingwith standard practice, then referred to HJC for consideration, 165 Cong. Rec. H201, H211(daily ed . Jan . 3, 2019) ( referring H . R . Res. 13 to HJC ) . This resolution requirement , butto the issue of whether HJC hasshown a “ particularizedneed” for the redacted grand jury materials in the MuellerReport. As to the “ preliminarily to” requirement, the Ukrainiandevelopmentssimply underscorethat the investigationscurrently proceedingin the Housemay lead to a Senate impeachmenttrial. 55 Case 1: 19- - BAH remainsunder review before https:/ /www . congress . gov / Document46 Filed 10 / 25/ 19 . See All Actions H .Res. 13 Page 56 of 75 116th Congress ( 2019- 2020 ) , / 116th -congress /house -resolution/13/ all -actions . HJC turned to the subjectof impeachmentin earnest after the release oftheMueller Report. On June 6 , 2019, issued a report that accompanied a resolution recommendingthat AG Barrbe held in contempt of Congress for failing to comply with a subpoena for production of the unredacted Mueller Report and underlying materials. See H . R . Rep. No. 116- 105 (2019 ) (“ ContemptReport . That Contempt Report explained that among the “ purposes” ofHJC ' s “ investigation into the alleged obstruction of justice, public corruption, and other abuses of power by President Donald Trump” was to “ consider[ ] whether any of the conduct described in the Special Counsel s Report warrants the Committee in taking any further steps under Congress’ Article I powers, ” includ[ ing] whether to approve articles of impeachment with respect to the President.” Id at 13. Significantly, on June 11, 2019 the fullHouse voted to ensure HJC possessed the authorityneededto continue this investigation. The House approved, by a vote of229 to 191 , a resolution allowingHJC “ to petition for disclosure of information” related to the Mueller Report i. . to bring the instantaction. H . R . Res. 430, 116th Cong. (2019 ). House Resolution 430 expressly authorized HJC to bring a petition pursuantto Rule 6( e ) judicial proceeding preliminarily to . . . exception , id. (omission in original) (quoting FED . R . CRIM . P . ( )( 3)( E) (i )) , and, as noted above, granted HJC, inconnection with that authorization, “ any and allnecessaryauthority underArticle theConstitution, ” ( emphasesadded). By July , HJC ' s investigation had become focused on the impeachment power , as expressed in a July 11, 2019 memorandum issued by HJC Chairman Nadler explaining that HJC is “ determin [ ing] whether the Committee should recommend articles of impeachment against the 56 Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Presidentor any other Article I remedies, and if so , in what form .” Page 57 of 75 HJC App., Ex. A Jerrold Nadler, Chairman , H . Comm . on the Judiciary, Memorandum Re : Hearing on “ Lessons from the Mueller Report, Part III: Constitutional Processes for Addressing PresidentialMisconduct at 3 (July 11, 2019 ), ECF No. 1-2. Ata hearingheld thenext day , Chairman Nadler further stated that HJC ' “ responsibility was “ to determine whether to recommend articles of impeachment against the President, ” noting that “ articles of impeachment are under consideration as part of the Committee s investigation. ” App ., Ex. T Lessonsfrom the Mueller Report, Part III: “ Constitutional Processes for Addressing PresidentialMisconduct : Hearing Before the H . Comm . on the Judiciary at 4 (July 12 2019 , ECF No. 1-21(capitalization altered). On September 12, 2019, HJC adopted a resolution confirming that the purpose of its investigation is “ to determine whether to recommend articles of impeachmentwith respectto President Donald . Trump. ” DOJResp ., Ex . 11 Comm . on the Judiciary Resolution for Investigative Procedures at 4 (Sept. 12, 2019) , ECF No. 20 -11. Finally, on September 24 , 2019 House Speaker Nancy Pelosi announced that the full House is “moving forward with an official impeachment inquiry. ” Pelosi Tr. For the past severalmonths” Speaker Pelosiexplained, the Househadbeen “ investigatingin our Committees and litigatingin the courts so the House can gather all ofthe relevantfacts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity , approvalof articles of impeachment. ” Id. Thus, Speaker Pelosi“ direct[ ed]” Committees six includingHJC — to “ proceed with their investigations under that umbrella of impeachment inquiry ” going forward. Id . These indicia ofHJC s purpose sufficiently demonstrate that the primary purpose of the investigation for which the grand jury disclosure is sought is to determine whether to recommend 57 Case 1: 19- -BAH Document46 Filed 10/ 25/ 19 Page 58 of 75 articles of impeachment against President Trump. Cf. Mazars, 2019 WL 5089748, at * 10 11 (looking to statements a committee chairmanmade in a memorandum to his colleaguesto assess the purpose of a congressional investigation ); see Jefferson sManual at 319 stating that “ [ i n the House various events have been credited with setting an impeachmentin motion, ” such as “ charges madeon the floor on the responsibility of a Member orDelegate,” “ a resolution introduced by a Member and referred to a committee, charges transmitted . . . from a grand jury ,” and “ facts developed and reported by an investigating committee of the House” ) ; 3 Deschler Ch. 14 5 ( In themajority ofcases , impeachment proceedings in the House have been initiated eitherby introducing resolutions of impeachmentby placing them in the hopper, or by offering charges on the floorof theHouse under a question ofconstitutionalprivilege. Where such resolutions have directly impeached federal civil officers, they have been conferred by the Speaker to the Committee on the Judiciary , which has jurisdiction over federal judges and presidential succession. . . ; Charles W . Johnson et al., House Practice: A Guide to the Rules, Precedents, and Practice of the House, Ch. 27 , at602 ( 2017) ( confirming same) . Formulating a firm line on when , in the impeachment context, activitieswithin the House meet the “ preliminarily to” requirementto qualify for disclosure of grand jury materialneed not be drawn here, since this case is clear. Collectively , the record shows an evolving and deliberate investigation by HJC that hasbecomefocused on determiningwhether to impeach the President and thushas crossed the “ preliminarily to ” threshold. 3. RequiringMore Than the CurrentShowingbyHJC , as DOJDemands, Would Improperly Intrude on Article I PowersGranted to House of Representatives DOJurges this Court to second - guess a co - equalbranch of government and find that the steps taken by the House fall short of showing a primary purpose of undertaking an impeachment inquiry thatwould meet the “ preliminarily to” requirement in Rule 6 ( ) (3)( E ) i) . In so doing, Case 1: 19- -BAH Document46 Filed 10/ 25/ 19 Page 59 of 75 DOJagain invites an impermissible intrusion on the House s constitutional authority under the Rulemakingand ImpeachmentClauses. These Article I grants of exclusiveauthority require a degree of deference to the House s position that the House and HJC are currently engaged in an investigation with the primary purpose of assessing whether to adopt articlesof impeachment. See Vander Jagt, 699 F .2d at 1173 concluding that the Rulemaking Clause “ means that neither wenor the Executive Branchmay tell Congresswhat rules itmust adopt ); Mazars, 2019 WL 5089748, at * 24 ( ]nless and until Congress adopts a rule that offends the Constitution, the courts get no vote in how each chamber chooses to run its internalaffairs. ; Nixon v United States, 506 U . S . 224, 238 ( 1993) (concluding that judicial review of Senate impeachment trial procedures would be inconsistent with the text and structure ofthe Constitution ). At the sametime, HJC has argued that complete and absolute deference is due to the House and Hearing Tr. at notonly in structuringbutalso in articulating the purpose of the currentinquiry . : 23 – 26 : 4 ; see also HJC App . at 30 – 31. HJC ' s position goes too far, at least as to judicial review ofHJC ' s primary purpose. ” Rule (e) , andthe SupremeCourt s cases interpreting it, grant this Court authority , and indeed a responsibility , to verify that HJC seeks disclosure of the grand jury material for use in an inquiry whose core aim is assessing possible articles of impeachment. The preceding review of the factualrecord and finding aboutHJC ' s primary purpose fulfill that responsibility of judicial review without intruding on the House s ability to write itsown rules or to exercise its power of impeachment. See Morgan v. United States, 801F. 2d 445 449 (D . C . Cir. 1986) (Scalia , J. ) ( noting that “ no absolute prohibition of judicial review House Rules exists). 41 Although neither the Supreme Court nor the D . C . Circuit considered the justiciability of, or the degree of deference due in , cases implicating the House s sole power of Impeachment ” U .S . CONST ., Art. I, 2 , cl. , verifying that the factual record supports HJC ' s assertion about its " primary purpose ” does not require direct judicial review of any actions by the House taken pursuant to the impeachment power. 59 Case 1: 19- Additionally , -BAH Document46 Filed 10/ 25/ 19 Page 60 of 75 ' s position that no disclosure of grand jury information to a House impeachmentinquiry is permitted under Rule 6 (e ), see DOJResp. at 13– 19, would completely bar access to relevant grand jury materials . Such a blanket bar would have concrete repercussions on limiting the House s access to investigative materials and thereby impermissibly impede the House s ability to exercise its constitutional power of impeachment . The House, through the committees tasked with conducting an impeachmentinvestigation, must develop a factualrecord supporting atleast a good -faith basis for believing that the Presidenthas engaged in conductmeeting the constitutional requirement of a “ high crime” or “ misdemeanor ” before voting in favor of articles of impeachmenttargeting such conduct. Cf. Kaley v. United States, 571 U . S. 320 , 328 (2014 ) (noting that to issue an indictment, a grand jury must find probable cause to believe a defendant committed the charged offense); Dep ’t of Justice , Justice Manual . 220 (explaining that before commencing or recommending federal prosecution against an individual a federal prosecutormust “ believe[ ] the person s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction” ) . Indeed, even a lawyer in a civilproceedingmust certif[ y ] that to the best of the [lawyer s knowledge , information , and belief, formed after an inquiry reasonable under the circumstances , ” the factual contentions” presented to the court have evidentiary support. ” FED . R . . P . 11b ) . Blocking access to evidence collected by a grand jury relevant to an impeachment inquiry, as DOJurges, undermines the House s ability to carry out its constitutional responsibility with due diligence. On the other hand, interpreting Rule 6 (e ) in a manner compatible with this constitutional responsibility avoidsthis conundrum , and ensures HJC has Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page61of 75 access to the pertinentinformationbeforemakingan impeachmentrecommendationto the full House. 4 DOJ' s Remaining Objections areUnpersuasive remainingarguments are easily dispatched. DOJassertsthat“ the fullHouse in the current Congress has already voted overwhelmingly against impeachment, ” DOJResp. at 25 (emphasis added) , because House Resolution498, which called for an impeachmentinquiry based on “ President Trump s racistcomments, ” H . R . Res. 498 , 116th Cong. 2019 ), “ defeated 332-95, ” DOJResp. at 25. Yet, the fact that HouseResolution498 was tabled, see All Actions, H .Res. 498 — 116th Congress 2019 -2020 ), https://www .congress. gov/ bill/116th congress/house- resolution/498/ all- actions?actionsSearchResultViewType = compact, has little relevance here since that resolution has nothing to do with the concerns of the current impeachment inquiry , which is focused on the President s possible criminal conduct described in the Mueller Report and in connection with Ukraine. Next, DOJ claims that HJC ' s “ primary purpose ” is to decide among different possible actions to “ pursue in response to the Mueller Report, ” such as“ various legislative proposals , Constitutionalamendments, and a Congressionalreferral to the Departmentof Justice for prosecution or civil enforcement. ” DOJResp . at 26 . DOJ is correct that deciding whether to recommend articles of impeachmentmaynot alwayshave been — and stillmay notbe the only purpose of HJC' s current investigation , but that is to be expected . “ As the Supreme Court has explained, he very nature of the investigative function — like any research searchers up some blind alleys” and into nonproductive enterprises. is that it takes the Mazars, 2019 WL 5089748, at * 21 (alteration in original) (quoting Eastland v. U. S. Servicemen s 421 U . S . 491, 509 ( 1975) . Here, HJC began , appropriately , with a broad inquiry , butfocused on impeachmentas the investigation progressed. This new focus does not necessitate that HJC 61 Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 Page 62 of 75 forgo its other aims. See Mazars, 2019 WL 5089748, at * 18. HJC ' s investigation to determine whether to impeach PresidentNixon, for example, contributed not only to PresidentNixon s resignation, but also to significantlegislative reforms . See, e. g ., Tax Analysts v. IRS, 117 F .3d 607, 611( D . C . Cir. 1997) ( InternalRevenue Codeprovision restricting public release of individualtax returns); United States v. Rose, 28 F . 3d 181, 183 (D . C . Cir. 1994) (Ethics in Government Act of 1978). Finally , DOJ cautions that if introduction of articles of impeachment by a single Member of Congress were sufficient to render an HJC investigation “ preliminarily to ” an impeachment trial, grand jury informationwould become“ politicized.” Hr Tr. at 70 : 6 ; see also DOJResp. at 28. Thathypotheticalsituation is far removed from this case, whereHJC is months into its investigation and both theSpeaker of the House andHJC have confirmed that the current investigation s purposeis to determine whether to recommend articles ofimpeachmentagainst President Trump. Besides, this “ slippery slope ” maybe less precipitous than DOJsuggests , for a congressional committee seeking to obtain grand jury information based solely on a single Member s introduction of articles of impeachment would have an uphill battle demonstrating a " particularizedneed” for thematerials. In sum , HJC haspresentedsufficientevidence that its investigationhas the primary purpose of determining whether to recommend articles impeachment and thus has satisfied Rule 6( ) “ preliminarily to C . . a judicial proceeding” requirement. HJC Has a “ Particularized Need ” for the Requested Materials Finally, to meet the last“ independentprerequisite[ ] to ( [ E ] ) ( i ) disclosure,” needsto “ show particularized need for access to” therequested grand jury materials, Baggot, 463 U.S . at Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page63 of 75 480 ; In re Sealed Case , 801 F. 2d 1379 , 1381 (D . C . Cir. 1986 ) . As stated earlier, those materials fall into three categories. First, HCJasks for “ all portions of the Mueller Reportthat were redacted pursuant to Rule 6 (e ).” HJC App . at 25 . Second, HJC wants thematerial underlying those redactions— that is, the portionsof the grand jury “ transcripts or exhibits” cited in the Report. Id. Third, HJC requests transcripts of any underlying grand jury testimony and any grand jury exhibits that relate directly to” President Trump s knowledge of several topics as well as to actionstaken by formerWhite House counsel Donald F . McGahn IIduring his service to first- candidate and then - President Trump. Id. 42 The “ particularized need” standard requires a showing that (1) the requested materials are “ needed to avoid a possible injustice in another judicial proceeding; ( 2) the need for disclosure is greater than theneed for continued secrecy; and (3) the request is structured to cover only material so needed. ” In re Sealed Case, 801 F . 2d at 1381( internal quotation marks omitted ); see also Baggot, 463 U . S. at 480 n.4 citingDouglas Oil, 441 U . S . at 222 ). The balancing aspect of the testmeans that “ as the considerationsjustifying secrecy becomeless relevant, a party asserting a need for grand jury [material] will have a lesser burden. ” Douglas Oil, 441 U . S. at 223 Ultimately, determinations of particularized need” are committed to the “ considered discretion of the districtcourt. ” Douglas Oil, 441U . S . at 228; see also In re Sealed Case, 801 F. at 1381(recognizing the “ substantial discretion of the district court ). That discretion to 42 To repeat, the topics in the third category of requested grand jury materials are: ( A ) “ PresidentTrump s knowledge of efforts by Russia to interfere in the 2016 U . S. Presidentialelection; ( B ) his knowledge of any direct or indirect linksor contacts between individuals associated with his Presidentialcampaign and Russia, including with respectto Russia ' s election interference efforts; C ) his knowledgeofanypotential criminalacts by him or any members ofhis administration, his campaign, his personalassociates, or anyone associated with his administration or campaign; " and D ) “ actions taken byMcGahn during the campaign, the transition, or McGahn s period of service as White House Counsel.” HJC App. at 25 . Materialis related directly to President Trump s knowledge, HJC says, if it reflects " whatwitnesses saw or heard PresidentTrump do.” Tr at 7 : 5 – 7 : 6 . 63 Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 64 of 75 determine the proper response to requests for disclosure, Douglas Oil, 441 U . S. at 228 , extends to structuring the “ time, ” “manner, ” and“ other conditions” of any release ofmaterial, FED. R . CRIM . . ( ) ( 3) ( E ) ; see also DouglasOil 441U . S . at 223 (acknowledgingthe possibilityof “ protective limitations” on the release of thematerial) . HJC hasproposed that the Court use this authority to “ direct a focused and staged disclosure, ” starting with categories one and two of the requested grand jury information and, following HJC s review of that material, moving to . category three . HJC Reply at 25 ; see also Hr g Tr. at 35 : 1 35 11 Adopting that proposal, to which DOJhas not objected, the Court finds that HJC has demonstrated a “ particularized need” for thematerial in the first and second categories. DOJ must promptly produce to HJC the grand jury material redacted from and cited in theMueller Report. HJC may file further requests articulating its“ particularized need” for any grand jury material in category three. 1. Disclosure is Necessary to Avoid Possible Injustice HJC asserts that itneeds thematerial to conduct a fair impeachment investigation based on all relevant facts . See HJC App . at 34. In authorizing disclosure of grand jury material for use in impeachment investigations of judges and of a President, courts have found this “ interest in conducting a full and fair impeachment inquiry be sufficiently particularized. Hastings, 833 F . 2d at 1442; Order, In Re: Grand Jury Investigation of U . S. Dist. Judge G . Thomas Porteous, Jr., No. 2:09-mc- 04346-CVSG , at 3; In re 1972 Grand Jury Report, 370 F. Supp. at 1230 (applying the predecessor to the“ particularized need” standard ) releasing the Watergate Roadmap to HJC, remarked that Chief Judge Sirica, in i] t would be difficult to conceive of a Case 1: 19- - BAH Document46 Filed 10 / 25/ 19 Page 65 of 75 more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information. ” In re 1972 Grand Jury Report , 370 F . Supp. at 1230.43 Impeachmentbased on anythingless than allrelevantevidencewould compromise the public s faith in the process. See Hastings, 833 F. 2d at 1445 ( Public confidence in a procedure as political and public as impeachment is an important consideration justifying disclosure. . Further, as already discussed, denying HJC evidence relevantto an impeachmentinquiry could pose constitutionalproblems . See supra Parts III. B . 3 ; see also Hastings , 833 F.2d at1445 ( concluding that denying the House the full record available , including the grand jury material, for use in impeachmentwould “ clearly violate separation of powers principles”) . These principles may, on their own, justify disclosure . See Hastings, 833 F . 2d at 1442; Order , In Re: Grand Jury Investigation of U. S. Dist. Judge G . Thomas Porteous, Jr., No. 2: 09-mc- 04346 CVSG , at 3 ; In re Grand Jury Report, 370 F . Supp . at 1230. Features of the House s investigation and of the Mueller Reportmake s need for the grand jury materials referenced and cited in the Report especially particularized and compelling. First , several “ portions of the Mueller Report are of particular interest to HJC , including the Trump Tower Meeting, Carter Page’ s trip to Moscow , PaulManafort s sharing of internal polling data with a Russian business associate, and the Seychelles meeting, as well as information about what candidate Trump knew in advance about Wikileaks' dissemination in July 2016 of stolen emails from democratic political organizations and the Clinton Campaign . 43 Atthetime, DOJsimilarlyrecognizedthat “ [ t ] he the House to be able to make its profoundly importantjudgmenton the basis ofallavailable information is as compellingas any that could be conceived. App. , Ex. P Mem . for the U . S. on behalfof the GrandJury , In re 1972Grand Jury Report, 370 F . Supp. 1219 (Mar. 5 , 1974), ECFNo. 1- 17. DOJnow attempts to distinguish In re 1972Grand Jury Reporton the ground thatthe grand jury itself initiatedtherequest to disclose the WatergateRoadmap to Congress, DOJResp. at 35 butRule doesnot give differenttreatmentto disclosuresby grand jurors, see FED. R . CRIM . P . ( e) (2) ( B ) ( i), and so , unsurprisingly , the grandjury ' s involvementfeatured not at all in the relevantportionsof Chief Judge Sirica s analysis, see In re 1972Grand Jury Report, 370 F. Supp. at 1229– 31 . 65 e) Case 1: 19- See HJC App . at 35 – 36 . Rule - BAH Document46 Filed 10 / 25/ 19 ( e) material was redacted from Page 66 of 75 the descriptions of each of these events in theMueller Reportand access to this redacted information is necessary to complete the full story for HJC . In some instances , without access to the redacted material, HJC cannot understandwhat the Special Counselalready found about key events. For example , what appears to be a citation to grand jury material supports the investigative finding that then candidate Trump asked Manafort for continued updates aboutWikiLeaks s plans to release hacked documents. See MuellerReportat II- 18 . 27. Second, numerousindividualshave already testified beforeor given interviewswith HJC or other House committees about the events noted above that are central to the impeachment inquiry and also described in the Mueller Report. 44 These witnesses includeDonald Trump, Jr. , Carter Page, Erik Prince, Steve Bannon, and Corey Lewandowski. Of concern is that another witness who spoke to both the Special Counsel and to Congress , Michael Cohen , has already been convicted ofmakingfalse statementsto Congress, Mueller Reportat 195 96 , and two other individuals have been convicted ofmaking false statements to the FBIin connection with the Special Counsel' s investigation, see id at (Papadopoulos); id . at (Flynn) . The record thus suggeststhat the grandjury materialreferenced or cited in theMuellerReportmay be helpfulin shedding lighton inconsistenciesor even falsities in the testimonyofwitnesses called in the House s impeachment inquiry. See HJC App . at 37 (seeking the materials “ to 44 In particular, the activities of theHouse Permanent Select Committee on Intelligence ( HPSCI) are relevanthere because HJC ' s protocols for handlingthe grand jury information, discussed infra , state that the information will be shared with Members of HPSCI. See HJC App., Ex. X Jerrold Nadler, Chairman , HJC [ ] Procedures forHandlingGrand Jury Information (“GJHandling Protocols”) ECF No. 1-25. With HJC , HPSCI is one of the six committees conducting the impeachment inquiry. See Pelosi Tr. 45 See DOJ Resp. at 34 & n .23 (noting testimony by Trump Jr., Page, Bannon , and Prince and citingMinority Views, HPSCIReport, https://intelligence house. gov/uploadedfiles/ 20180411_ - _ final_ _hpsci_ minority _ views_ on _ majority _ report.pdf); Thursday: House Judiciary to Consider Procedures Regarding Whether to Recommend Impeachment, COMM . ON THE JUDICIARY (Sept. 9, 2019), https://judiciary.house. gov/news/press-releases/ thursday-house -judiciary -consider -procedures-regarding-whether recommend (Lewandowski). 66 Case 1: 19 - -BAH Document46 Filed 10/ 25/ 19 Page 67 of75 refresh or challenge th [ e ] testimony” ofwitnesses before Congress and “ to corroborate witness ] veracity see also Hr g Tr. at : 5 41 : 17 ( be used to impeach or corroborate witnesses). ) ( confirmingthatthe grand jury materialwould Disclosure is thus necessary here to prevent witnesses from misleading the House during its investigative factfinding. See supra Part III. B . 3 (discussing the House s factfinding role). As DOJacknowledges disclosureof grand jury information when necessary to avoid misleading a trier of fact” is a paradigmatic showingof “ particularized need. ” DOJResp. at 18 19 recognizing that requests underthe “ judicial proceedings exception typically arose this situation and quoting Douglas Oil) ; Douglas Oil, 441 U . S . at 222 n. 12 ( The typical showing of particularized need ariseswhen a litigant seeks to use the grand jury transcript at the trial to impeach a witness , to refresh his recollection, to test his credibility and the like. (quoting Procter & Gamble Co. , 356 U . S . at683)). Third , HJC needs the requested materialnot only to investigate fully butalso to reach a finaldetermination about conduct by the Presidentdescribed in the MuellerReport. See HJC App . at 34 (requesting thematerial “ to assess the meaning and implications of the Mueller Report ). Given that the Special Counsel stopped short of a “ traditionalprosecutorial judgment or any “ ultimate conclusions about the President s conduct, Mueller Report at II-8 , in partto avoid preempt ing] constitutional processes for addressing presidentialmisconduct, ” id. at II 1 see also id. at 2 (“ [ W ] hile this report does not conclude that the President committed a crime , it also does not exonerate him .” ) “ the House alone can hold thePresidentaccountablefor the conduct described, ” Reply at 19. HJC cannot fairly and diligently carry out this responsibility without the grand jury material referenced and cited in theMueller Report. Put 46 In identifying this need, HJC' s application focused on the example ofDon McGahn, see HJC App. at 37, but DOJhas now confirmed thatMcGahn did not testify beforethe grand jury , see Revised ADAG Decl. AsHJC confirmedat the hearing, the recentrevelationsrelated to Ukrainehave not displaced HJC' s focus on investigatingtheconduct describedin theMuellerReport . See Hr g Tr. at 30 :25 – 32 :22 . 67 Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 Page 68 of 75 another way, HJC requires the grand jury material to evaluate the bases for the conclusions reached by the SpecialCounsel. Critically , for example, the Mueller Report states : The evidence weobtained about the President s actions and intentpresents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.” Mueller Report at II2 . The grand jury material reliedon in VolumeIIis indispensableto interpretingthe SpecialCounsel ' s evaluation of this evidence and to assessing the implicationsof any “ difficult issues” HJC ' s inquiry into obstruction of justice. The same is true of thematerial redacted from Appendix C which details the SpecialCounsel s unsuccessful efforts to interview the President directly , the Special Counsel s choice not to issue a grand jury subpoena for the President s testimony , and related information redacted for grand jury secrecy. See Mueller Report App C 1 2 Complete informationaboutthe evidencethe SpecialCounselgathered, from whom , and in what setting is indispensable to HJC . The recentrevelation that two individualswho figured prominently in events examined in the Mueller Report McGahn and Donald Trump, Jr. were notcompelled to testify before the grand jury illustrates this point. See Revised ADAG Decl. The choice not to compel their testimony may indicate, for example, that the Special Counselintended to leaveaggressive investigationof certain potentialcriminalconduct , suchas obstruction of justice by the President , to Congress. That intention should inform HJC ' s investigation of those same issues. The grand jury material redacted from and cited in the Report may provide other significant insights into the Special Counsel s use of, or decisions not to use, the grand jury. Those insights may be essential to HJC ' s decisions about witnesses who should be questioned and about investigatory routes left unpursued by the Special Counsel that should be pursued by HJC prior to a final determination about impeachment. Case 1: 19- -BAH Document46 Filed 10 / 25/ 19 Page69 of 75 Similarly, disclosure is necessary to assist HJC in filling, or assessingthe need to fill, acknowledged evidentiary ” in the SpecialCounsel s investigation. See supra Part I. A . TheReportdetailedor alluded to investigative choicesby the Special Counselaboutimmunity aboutprivilege, aboutpursuitof hard- to - getevidence, and other matters As described earlier, these choices had an impact on the quantity and quality of evidence gathered about events of interest to HJC , including the Trump Tower Meeting, Carter Page s trip to Moscow , Erik Prince s Seychellesmeeting , and potentialtamperingofMichaelCohen s testimony to Congress. See supra Part I. A . The Special Counselhelpfully documented those impacts, identifying critical factual disputes his investigation left unresolved and pointing to potential criminal violations that went uncharged due at least in part to gaps in evidence . See supra Part I. A . thus needs the grand jury materialredactedfrom and cited in the Report to pursue evidence that the Special Counsel did not gather and to resolve questions — includingthe ultimate question whether the President committed an impeachable offense — that the Special Counsel simply left unanswered. In a last gasp effort to deny HJC access to the requested grand jury information , DOJ argues that HJC cannot show “ particularized need because other sources , such as the public version of theMuellerReport, the other categoriesofmaterialredacted from the Mueller Report, congressionaltestimony, and FBI Form 302 interview reports (“ - 302s” ), supply the requisiteinformation. See DOJResp. at 31– 34 . Asthe precedingdiscussionmakes abundantly clear, this argument gets the basic relationship between HJC s and the Special Counsel' s investigationsbackwards: the overlapbetween these investigationsenhances, rather than detracts from , HJC ' s showing of“ particularized need . . In reGrand Jury Proceedings -4 & GJ-75- 3, 800 F. 2d 1293, 1302 (4th Cir. 1986 ) explaining that “ particularized need standard Case 1: 19- - BAH Document 46 Filed 10/ 25 / 19 Page 70 of 75 requiresmore than relatedness but that“ [ ]bviously, thematerialsmust rationally related for otherwise there would beno reason at all to disclose” ). Furthermore, the sources DOJidentifies cannot substitute for the requested grand jury materials. To insuremosteffectively against being misled, HJC musthaveaccess to all essential pieces of testimonyby witnesses, including testimony given under oath to the grand jury . Additionally, for purposes of assessingand following up on the MuellerReports conclusions , the full Report is needed : the grand jury materialmay offer unique insights , insights not contained in the rest of theReport, congressional testimony , or FBI- 302 reports. Finally , DOJclaims that “ [ a ] findingof particularized need especially inappropriate” because HJC “ has not yet exhausted its available discovery tools” , waiting for DOJ fulfill its promised production of FBIinterview reports and using congressional subpoenas. DOJ Resp . at 32 – 33 (citing In re Grand Jury 89 - 4 - 72 , 932 F. 2d 481, 488 (6th Cir. 1991) . In particular, DOJcites an agreementreached with HJC this summer for DOJto provide to HJC the thirty -three FBI- 302 reports cited in Volume IIof the Report, contendingthat this agreement must preclude a finding of “ particularized need. ” See DOJResp. at 32. These arguments smack of farce. The reality is that DOJand the White House have been openly stonewalling the House s efforts to get information by subpoena and by agreement, andthe White House has flatly stated that theAdministrationwillnotcooperate with congressionalrequestsfor information. See Letter from Pat A . Cipollone, Counselto the President , to Representative Nancy Pelosi, Speaker of the House, et al. (Oct. 8 , 2019) at 2. Regarding s production of FBI-302s, “ the bottom line,” as HJC putit, is that some 302s have so far been produced by DOJ butnot “ the ones ofmost interest. ” Resp. to DOJ Case 1: 19- - BAH Second Supp . at 4 , ECF No. 41. Document 46 Filed 10/ 25 / 19 Page 71of 75 Although DOJ at first “ anticipate [ d ] making the remaining FBI- 302s available, ” DOJ First Supp . at 3, DOJ now says it “may need to amend the .. agreement” because of a letter the White House sent to congressional leadership on October 8 , see DOJ Second Supp ., Second Decl. of ADAG Bradley Weinsheimer ( Second ADAG Decl. ) that “ President Trump and his Administration reject House s baseless, unconstitutionalefforts to overturn the democratic process” and “ cannot participate in House partisan and unconstitutionalinquiry, the Letter from Pat A . Cipollone , Counselto the President , to Representative Nancy Pelosi, Speaker of theHouse , et al. (Oct. 8 , 2019) at 2. The letter s announced refusal to cooperate extendsto congressional subpoenas, which the President himself had already vowed to “ fight[] Remarks by President Trump Before Marine One Departure, WHITE HOUSE (Apr. 24, 2019) , https: //www .whitehouse. gov/ briefings statements/remarks- president- trump-marine-one-departure-39 (“Well, we' re fightingall the subpoenas. ) The White House s stated policy of non - cooperation with the impeachment inquiry weighs heavily in favor of disclosure. Congress s need to access grand jury material relevant to potentialimpeachable conduct by a President is heightened when the Executive Branchwillfully obstructs channels for accessing other relevant evidence . 2 TheNeed for Disclosure OutweighstheNeed for Continued Secrecy Any considerations justifying continued grand jury “ secrecy bec [ a ]me less relevant” once the Special Counsel s investigation, and attendant grand jury work , concluded. Douglas Oil, 441 U . S . at 223. Once a grand jury has ended , interests in preventing flightby those who mightbe indicted and in protecting sitting jurors andwitnessesdisappear, or lessen considerably. 48 DOJhas produced redacted FBI- 302s for only seventeen of the thirty -three individuals promised . DOJ' s Supplemental Submission Regarding Accommodation Process ( DOJ First Supp. , ECF No. 37 . 71 Case 1: 19- - BAH Document 46 Filed 10/ 25 / 19 Page 72 of 75 See id. at 222 (recognizing that “ the interests in grand jury secrecy” are “ reduced” once “ the grand jury has ended its activities”); Butterworth v. Smith, 494 U . S . 624 , 632– 33 ( 1990 ) ( identifying these as the considerations that no longer apply [ ]hen an investigation ends” ) ; In re 1972 Grand Jury Report, 370 F . Supp. at 1229; 1 Charles Alan Wright & Arthur R . Miller, Federal Practice and Procedure 106 ( 4th ed . 2019 ). Oncea grand jury has ended, the primary purpose of secrecy is safeguarding future grand juries' ability to obtain and full testimony. Douglas Oil, 441 U . S. at 222 . Any risk of damage to this interest is slim here, for two reasons. First, as DOJitself emphasizes in arguing that HJC cannot establish a need for the material, categories one and two of HJC ' s request are relatively limited.” DOJResp. at 6 ; see also id. at 31(calling the redactions“ minimal” ); Revised ADAG Decl. Disclosure of“ limited ” information, including excerpts of grand jury transcripts , to HJC is unlikely to deter potential future grand jury witnesses . Second, disclosure is to the House, not to the public , and “ less risk of. . . leakage or improper use materialis presentwhen disclosure is made to “ government movants. ” Sells Eng grand jury Inc., 463 U . S . at 445 ; Hastings, 833 F . 2d at 1441(considering factors peculiar to the [ HJC] as a governmentmovant ). Here, HJC guarantees that “ a high degree of continued secrecy could in factbemaintained under already- adopted Grand Jury Handling Procedurescallingfor storage of thematerialin a secure location and restriction of access to Members of HJC and HPSCI. See HJC App. at 38 ( citingGJHandling Protocols; see also In re 1972 Grand Jury Report, 370 F . Supp. at 1230 ( observing that the relevant standard “ mightwell justify even a public disclosure” but that there is “ certainly ample basis for disclosure to a body” that “ hastaken elaborate precautions to insure against unnecessary and inappropriate disclosure ofthese materials”). DOJ discounts these procedures as “ entirely illusory” because they can be altered a simple Case 1: 19- majority vote - BAH Document 46 Filed 10/ 25 / 19 Page 73 of 75 DOJResp . at 36 , but offers “ no basis on which to assume that the Committee s use of the [material] will be injudicious or that it will disregard” or change these procedures, In re 1972 Grand Jury Report, 370 F . Supp. at 1230 . Such an assumption would be inappropriate. See supra Part II. B . 3 (discussing deference due to Congress in thismatter). Certainly , a continued interest in protecting from public ridicule” individuals investigated but not indicted by the grand jury persists even when a grand jury has ended . Douglas Oil 441U . S . at 219 ; see also Wright Miller, supra 106. The risk of public reputationalharm to such individuals is slim to nonehere, however, wheredisclosureis to HJC under special handling protocols. Further, any remaining interest in secrecy is diminished by widespread public knowledge about the details of the Special Counsel s investigation , which paralleled that of the grand jury s, and about the charging and declination decisions outlined in the Mueller Report. See In reGrand Jury Subpoena , Judith Miller, 438 F . 3d 1138 , 1140 (D . C . Cir. 2006 ) ( recognizing that “when information is sufficiently widely known” it has no “ character [ of] Rule 6 (e) material” (quoting In re North, 16 F . 3d at 1245)). DOJ argues that ongoing criminalmatters referred by the Special Counsel s Office for investigation or prosecution are the chief reason for continued secrecy. See DOJ Resp. at 36 – 37 citing, inter alia, MuellerReport App and Completed Cases (“ Special Counsel' s Office Transferred, Referred, That DOJhas already disclosed to certain Members of the House the material redacted from the Mueller Report to prevent harm to ongoingmatters, see DOJResp . at 8 see also Hr Tr. at 4 : 4 11, undercuts this claim that continued secrecy of the grand jury material is required to protect any ongoing investigations or cases. HJC has nevertheless made clearthat ithas no interestwhatsoeverin underminingany ongoingcriminalproceedings” and has expressed willingness to negotiate with DOJ about disclosure of any grand jury information Case 1: 19- -BAH Document46 that DOJbelieves could harm ongoing matters. Hr Filed 10/ 25/ 19 Page 74 of 75 Tr. 45: 2 11. The Court expects that any such negotiationsbetween the parties would be limited to the six redactions for grand jury information in Volume I ofthe ReportthatDOJhas already identified as presenting potential harm to ongoingmatters. SeeSecondADAG Decl. . The need for continued secrecy isminimal and thus easily outweighed by HJC ' s compellingneed for the material. Tipping the scale even further toward disclosure is the public s interest in a diligent and thorough investigation into , and in a final determination about, potentially impeachable conduct by the President described in theMueller Report. See In re 1972Grand Jury Report, 370 F. Supp. at 1230; see Illinois v. Abbott & Assocs. , Inc. , 460 U . S . 557, 567 n. 15 (1983) ( ]he district court may weigh the public interest, if any , served by disclosure to a governmental body.” ). 3. Scope of DisclosureAuthorized HJC has shown that itneeds the grand jury material referenced and cited in the Mueller Report to avoid a possible injustice in the impeachment inquiry , that this need for disclosure is greater than the need for continued secrecy, and that the“ request is structured to cover only material so needed . Douglas Oil, 441 U . S. at 222. 49 DOJis ordered to disclose thatmaterial to HJC promptly , by October 30, 2019. HJC may file further requests with the Court articulating its particularized need for disclosure of any additionalmaterial requested in its initialapplication . IV. CONCLUSION For the foregoing reasons, HJC ' s application is granted. Consequently, DOJ is ordered to provide promptly , by October 30 , 2019 , to HJC allportions of the Mueller Report that were 49 DOJconcedes that the requests for thematerial referenced or cited in the report are properly structured. See DOJResp. at 37 – 38 ( challengingonly the structure ofHJC' s request for material in category three) . 74 Case 1: 19- redacted pursuant to Rule - BAH Document 46 Filed 10/ 25 / 19 Page 75 of 75 (e ) and any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuantto Rule 6 ( ). HJC is permitted to file furtherrequestsarticulating its particularized need for additional grand jury information requested in the initialapplication. An appropriate Order accompanies this Memorandum Opinion. Date: October 25, 2019 BERYL A . HOWELL Chief District Judge