The Justice Department has announced that it will deliver special counsel Robert S. Mueller III’s report to Congress and the public on Thursday morning, but with redactions of grand jury information (and other categories of information) that will leave innumerable gaps in our understanding of what Mueller uncovered. Many commentators have suggested that Congress’s only mechanism for securing an unredacted report is to launch a formal impeachment inquiry — a blind step forward with great political risks for congressional Democrats and the party overall.
That unpleasant choice looked to be the upshot of the U.S. Court of Appeals for the District of Columbia Circuit’s recent 2-to-1 decision in McKeever v. Barr, which held that the courts lack “inherent power” to order disclosure of grand jury material and instead must hew to the six exceptions describing when such material can be released — exceptions that are delineated in Rule 6(e) of the Federal Rules of Civil Procedure.
One of those six is disclosure “preliminary to or in connection with a judicial proceeding.” And while it may seem anomalous, several courts have held — and the D.C. Circuit in McKeever expressly affirmed — that “judicial proceeding” within the meaning of the rule encompasses an impeachment inquiry by Congress.