Commentators are debating on whether or not the press conference and court filing (pdf) Friday, in which the House Judiciary Committee announced that it is formally investigating whether or not there are grounds to impeach Donald Trump, comprise, precisely, the beginning of an “impeachment inquiry.” In fact, the House members speaking at the press conference weren't even sure. But the key historical precedents from Watergate make it clear that the impeachment inquiry has begun, and that the intentional ambiguity of today's announcement -- the possibility that the Committee might not find grounds for impeachment -- doesn't impair Democrats' ability to utilize the power of the "i-word" to help them gather further evidence against the president.
Here's the historical precedent, and why it matters:
On February 6, 1974, during Watergate, the House of Representatives passed House Resolution 803, instructing the Judiciary Committee to investigate “whether sufficient grounds exist” for impeachment (a resolution that, under House rules at the time, was required to authorize the Committee to issue subpoenas):
"Resolved, That the Committee on the Judiciary, acting as a whole or by any subcommittee thereof appointed by the chairman for the purposes hereof and in accordance with the rules of the committee, is authorized and directed to investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Richard M. Nixon, President of the United States of America. The committee shall report to the House of Representatives such resolutions, articles of impeachment, or other recommendations as it deems proper. ***"
Judiciary Committee chairman Peter Rodino Jr. (D-NJ), explained the purpose of this resolution on the floor of the House (emphases added):
“We are asking the House of Representatives, by this resolution, to authorize and direct the Committee on the Judiciary to investigate the conduct of the President of the United States, to determine whether or not evidence exists that the President is responsible for any acts that in the contemplation of the Constitution are grounds for impeachment, and if such evidence exists, whether or not it is sufficient to require the House to exercise its constitutional powers. ***
House Resolution 803 authorizes and directs the Committee on the Judiciary... to investigate fully and completely whether sufficient grounds exist for the House to exercise its constitutional power to impeach Richard M. Nixon, President of the United States of America. It directs the committee to report to the House any resolutions, articles of impeachment, or other recommendations it deems proper. If, after a full and complete investigation, the committee determines not to recommend impeachment to the House, it may report this conclusion, together with any resolution that it deems appropriate in these circumstances. If, on the other hand, the committee determines after its investigation to recommend impeachment, it may report a resolution of impeachment that may include or be accompanied by specific articles of impeachment, as well as any other appropriate resolutions or recommendations.
The scope of the investigation authorized by House Resolution 803 is stated broadly to avoid foreclosing inquiry into any matter that may bear upon, or ultimately lead to evidence bearing upon, the existence or nonexistence of sufficient grounds for impeachment. The powers of the House in an impeachment investigation stem from the express grant to the House by the Constitution of the sole power of impeachment; they do not depend upon any statutory provisions or require judicial enforcement. The sole power of impeachment carries with it the power to conduct a full and complete investigation of whether sufficient grounds for impeachment exist or do not exist, and by this resolution these investigative powers are conferred to their full extent upon the Committee on the Judiciary.”
Passage of H.Res. 803 on February 6 was followed by months of subpoenas, interviews, and legal action. The Judiciary Committee's formal “impeachment” hearings didn't begin until May 9 (and those, too, were “investigative,” seeking to determine whether or not grounds for impeachment existed). The Committee didn't recommend Articles of Impeachment until July 27.
But in the meantime, something important happened that make this more than a rhetorical question: on March 18, in an order captioned "In re Report & Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to the House of Representatives" (370 F. Supp. 1219), the judge overseeing the Watergate special prosecutor's grand jury authorized the release of confidential grand jury materials to the Committee. (That ruling subsequently was upheld by the D.C. Circuit Court of Appeals, and another D.C. Circuit case earlier this year reluctantly confirmed that it remains good law.)
This history may prove crucial to the Committee's ability to obtain materials gathered by the grand jury that worked with Special Counsel Robert Mueller -- materials like witness testimony and documents collected pursuant to grand jury subpoena. Rule 6(e) of the Federal Rules of Criminal Procedure specify that grand jury materials are secret, allowing only limited exceptions -- one of which allows them to be shared in “judicial proceedings.” By allowing Watergate grand jury material to go to the Judiciary Committee in connection with an inquiry into whether or not impeachment was warranted, federal judge John Sirica created precedent that the current Judiciary Committee, conducting a similar inquiry into whether or not to impeach Trump, also is entitled to see what Mueller saw.
In both situations, the Judiciary Committee was still considering whether or not to recommend impeachment. In both situations, no decision had yet been made yet. In both situations, the Judiciary Committee was just examining the question. But the Judiciary Committee in 1974 got the information it needed to proceed with its inquiry; the same rule should apply today.
In short: whatever anyone calls it, the “impeachment inquiry” has begun.
Published with permission of Warranted Wiretaps