Respondents Brief — Department of Justice, Petitioner v. House Committee on the Judiciary

Supreme Court briefOct 14, 2020

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No. 19-1328

IN THE

UNITED STATES DEPARTMENT OF JUSTICE,

Petitioner,

COMMITTEE ON THE JUDICIARY OF THE

UNITED STATES HOUSE OF REPRESENTATIVES,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR THE RESPONDENT

Annie L. Owens

Joshua A. Geltzer

Mary B. McCord

INSTITUTE FOR

CONSTITUTIONAL ADVOCACY

AND PROTECTION

GEORGETOWN UNIVERSITY

LAW CENTER

600 New Jersey Ave., NW

Washington, DC 20001

Jeffrey L. Fisher

Brian H. Fletcher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

Douglas N. Letter

General Counsel

Counsel of Record

Todd B. Tatelman

Megan Barbero

Josephine Morse

Jonathan B. Schwartz

OFFICE OF GENERAL COUNSEL

U.S. HOUSE OF

REPRESENTATIVES

219 Cannon House Building

Washington, DC 20515

(202) 225-9700

douglas.letter@mail.house.gov

QUESTION PRESENTED

Whether a Senate impeachment trial is a

“judicial proceeding” under Federal Rule of Criminal

Procedure 6(e)(3)(E)(i).

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 3

A. The Constitution’s impeachment

procedure ......................................................... 3

B. Federal Rule of Criminal Procedure 6(e) ....... 6

C. The present controversy ................................. 8

SUMMARY OF THE ARGUMENT .......................... 13

ARGUMENT .............................................................. 16

An impeachment trial is a judicial

proceeding under Rule 6(e) ................................. 16

A. An impeachment trial falls squarely

within the plain meaning of “judicial

proceeding” .................................................... 16

1. The Constitution gives the Senate

the judicial power of trying impeachments ....................................................... 17

2. Every traditional indicator of

ordinary meaning confirms that

an impeachment trial is a judicial

proceeding ............................................... 21

B. A plain-meaning interpretation of

“judicial proceeding” is consistent with

the other uses of that term in the

Federal Rules of Criminal Procedure .......... 27

C. A plain-meaning interpretation of

“judicial proceeding” is consistent with

longstanding practice ................................... 29

iii

D. A plain-meaning interpretation of

“judicial proceeding” is compelled by

the canon of constitutional avoidance.......... 35

1. Precluding the House from accessing

grand-jury material would violate

the Constitution...................................... 36

2. Adhering to the plain meaning of

“judicial proceeding” creates no

constitutional difficulty .......................... 37

II. In the alternative, the district court’s order

was a permissible exercise of its inherent

authority .............................................................. 43

CONCLUSION........................................................... 50

TABLE OF AUTHORITIES

Page(s)

Cases

Astoria Fed. Sav. & Loan Ass’n v. Solimino,

501 U.S. 104 (1991) ..............................................48

Bank of Nova Scotia v. United States,

487 U.S. 250 (1988) ..............................................46

Barry v. United States,

279 U.S. 597 (1929) ........................................30, 32

Bostock v. Clayton Cty.,

140 S. Ct. 1731 (2020) ..........................................20

Bus. Guides, Inc. v. Chromatic Commc’ns

Enters.,

498 U.S. 533 (1991) ..............................................16

In re Carter,

74 P. 997 (Cal. 1903) ............................................24

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) ................................................46

Chandler v. Judicial Council,

382 U.S. 1003 (1966) ............................................23

Clark v. Herring,

260 N.W. 436 (Iowa 1935) ....................................24

Clinton v. Jones,

520 U.S. 681 (1997) ..............................................36

Dennis v. United States,

384 U.S. 855 (1966) ..............................................38

Dietz v. Bouldin,

136 S. Ct. 1885 (2016) ..........................................45

Douglas Oil Co. v. Petrol Stops Nw.,

441 U.S. 211 (1979) ...................................... passim

Dullam v. Willson,

19 N.W. 112 (Mich. 1884).....................................24

Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Const. Trades Council,

485 U.S. 568 (1988) ..............................................35

Encino Motorcars, LLC v. Navarro,

138 S. Ct. 1134 (2018) ..........................................26

Ferguson v. Wilcox,

28 S.W.2d 526 (Tex. 1930) ...................................24

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) ..........................................26

In re Grand Jury Investigation of U.S. Dist.

Judge G. Thomas Porteous, Jr.,

No. 09-4346 (E.D. La. Aug. 6, 2009) ................8, 27

In re Grand Jury Proceeding,

No. 09-30737 (5th Cir. Nov. 12, 2009) ...................8

Gravel v. United States,

408 U.S. 606 (1972) ..............................................38

Haldeman v. Sirica,

501 F.2d 714 (D.C. Cir. 1974) (en banc) ..........8, 33

Henderson v. Hovey,

27 P. 177 (Kan. 1891) ...........................................24

Illinois v. Abbott & Assocs.,

460 U.S. 557 (1983) ..............................................41

Izumi Seimitsu Kogyo Kabushiki Kaisha v.

U.S. Philips Corp.,

510 U.S. 27 (1993) ................................................42

Kilbourn v. Thompson,

103 U.S. 168 (1881) ..............................1, 13, 14, 23

Link v. Wabash R. Co.,

370 U.S. 626 (1962) ........................................46, 48

Lorillard v. Pons,

434 U.S. 575 (1978) ..............................................34

In re Madison Guar. Sav. & Loan Ass’n,

No. 94-1 (D.C. Cir. Spec. Div. July 7, 1998) ..........8

McGrain v. Daugherty,

273 U.S. 135 (1927) ..............................................36

McKeever v. Barr,

920 F.3d 842 (D.C. Cir. 2019), cert. denied,

140 S. Ct. 597 (2020) ............................................44

Mississippi Pub. Corp. v. Murphree,

326 U.S. 438 (1946) ..............................................48

Mississippi v. Johnson,

71 U.S. 475 (1867) ..........................................13, 23

New Prime, Inc. v. Oliveira,

139 S. Ct. 532 (2019) ............................................22

Nixon v. United States,

Civ. No. H88-0052(G) (S.D. Miss. Dec. 5,

1988)........................................................................8

Pa. Dep’t of Corr. v. Yeskey,

524 U.S. 206 (1998) ..............................................20

People v. Swena,

296 P. 271 (Colo. 1931) .........................................24

Pittsburgh Plate Glass Co. v. United States,

360 U.S. 395 (1959) ..............................................45

Quinn v. United States,

349 U.S. 155 (1955) ..............................................36

In re Request for Access to Grand Jury

Materials,

833 F.2d 1438 (11th Cir. 1987) (en banc) ........8, 40

Schiavone v. Fortune,

477 U.S. 21 (1986) ................................................48

vii

Senate Select Comm. on Presidential

Campaign Activities v. Nixon,

498 F.2d 725 (D.C. Cir. 1974) ................................3

State v. Beadle,

111 P. 720 (Mont. 1910) .......................................24

State v. Hill,

55 N.W. 794 (Neb. 1893) ......................................24

The Pocket Veto Case,

279 U.S. 655 (1929) ..............................................23

Trump v. Mazars USA, LLP,

140 S. Ct. 2019 (2020) ................................2, 21, 36

United States v. Baggot,

463 U.S. 476 (1983) ..............................................29

United States v. Delaware & Hudson Co.,

213 U.S. 366 (1909) ..............................................35

United States v. John Doe, Inc. I,

481 U.S. 102 (1987) ..................................15, 41, 42

United States v. Proctor & Gamble Co.,

356 U.S. 677 (1958) ................................................7

United States v. Sells Eng’g, Inc.,

463 U.S. 418 (1983) ...................................... passim

United States v. Smith,

331 U.S. 469 (1947) ..............................................35

United States v. Socony-Vacuum Oil Co.,

310 U.S. 150 (1940) ..........................................6, 45

Van De Griff v. Haynie,

28 Ark. 270 (1873) ................................................24

Walter Nixon v. United States,

506 U.S. 224 (1993) ............................................4, 5

Walton v. House of Representatives of Okla.,

265 U.S. 487 (1924) ..............................................23

viii

Washington v. Yakima Indian Nation,

439 U.S. 463 (1979) ..............................................44

Whitfield v. United States,

574 U.S. 265 (2015) ........................................16, 22

Wis. Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) ..........................................16

Yancey v. Commonwealth,

122 S.W. 123 (Ky. 1909) .......................................24

Constitutional Provisions

U.S. Const., art. I ....................................................5, 18

U.S. Const., art. I, § 2, cl. 5 ....................................3, 36

U.S. Const., art. I, § 3, cls. 6-7............................1, 5, 18

U.S. Const., art. I, § 5, cl. 1 ........................................30

U.S. Const., art. I, § 5, cl. 2 ........................................30

U.S. Const., art. I, § 6, cl. 1 ..................................37, 38

U.S. Const., art. II ......................................................39

U.S. Const., art. III ...........................................5, 18, 21

U.S. Const., art. III, § 2, cl. 3 .................................5, 18

Statutes

28 U.S.C. § 2072(a) .....................................................29

Pub. L. No. 95-78, § 2, 91 Stat. 319 (1977) ............7, 34

Rules

Fed. R. Crim. P. 1 .......................................................30

Fed. R. Crim. P. 6 ............................................... passim

Fed. R. Crim. P. 6(e) ........................................... passim

Fed. R. Crim. P. 6(e)(2) ...........................................6, 47

Fed. R. Crim. P. 6(e)(2)(A) ..........................................46

Fed. R. Crim. P. 6(e)(2)(B) ..........................................46

Fed. R. Crim. P. 6(e)(3)(A) ............................................6

Fed. R. Crim. P. 6(e)(3)(D) ......................................6, 39

Fed. R. Crim. P. 6(e)(3)(E) .................................. passim

Fed. R. Crim. P. 6(e)(3)(E)(i) .............................. passim

Fed. R. Crim. P. 6(e)(3)(E)(iii) ................................7, 38

Fed. R. Crim. P. 6(e)(3)(E)(iv) ......................................7

Fed. R. Crim. P. 6(e)(3)(F)(ii) ...............................27, 28

Fed. R. Crim. P. 6(e)(3)(G) ..........................................28

Fed. R. Crim. P. 53 .....................................................29

Fed. R. Crim. P. 57(b) .................................................46

Legislative Materials

8 Annals of Cong. 2245 (1798)....................................19

8 Annals of Cong. 2319 (1799)....................................19

13 Annals of Cong. 319 (1804)....................................19

14 Annals of Cong. 89 (1804)......................................20

7 Cong. Deb. 9 (1830) ..................................................20

Cong. Globe, 27th Cong., 2d Sess. 580

(1842) ....................................................................36

Cong. Globe, 40th Cong. 2d Sess. Supp.

12, 28, 63, 111, 121, 209, 290, 342,

395, 412, 415 (1868) .............................................23

65 Cong. Rec. 8864-65 (1924) ...............................31, 32

77 Cong. Rec. 3394 (1933) ..........................................22

80 Cong. Rec. 3489 (1936) ..........................................22

166 Cong. Rec. S289 (Jan. 21, 2020) ..................1, 5, 23

166 Cong. Rec. S290 (Jan. 21, 2020) ............................5

166 Cong. Rec. S938 (Feb. 5, 2020) ..............................5

H. Rep. No. 101-36 (1989) ............................................8

H. Rep. No. 116-346 (2019) ........................................13

H. Res. 430, 116th Cong. (2019) .............................9, 28

S. Doc. No. 106-4, Vol. II (1999) .................................23

Standing Rules of the Senate, 113th

Cong. (2013), R. IV.1(d) ........................................23

Conduct of Albert W. Johnson and Albert L.

Watson, United States District Judges,

Middle District of Pennaylvania: Hearing

Before Subcomm. of the H. Comm. on the

Judiciary, 79th Cong., 1st Sess. (1945) ...............33

Other Authorities

Advisory Committee on Criminal Rules,

Minutes (Apr. 2012) .............................................48

Amar, Akhil Reed, America’s Constitution: A

Biography (2005) ............................................17, 32

Bay State Executive Pleads Innocent at

Impeachment Trial, Washington Evening

Star (Aug. 5, 1941) ...............................................25

Beale, Sara Sun et al., Grand Jury Law &

Practice (Nov. 2019) .............................................31

Black’s Law Dictionary (4th ed. 1951) .................16, 22

Black’s Law Dictionary (11th ed. 2019) ...............16, 22

Bouvier’s Law Dictionary (8th ed. 1914) ...................22

Bowman III, Frank O., High Crimes and

Misdemeanors (2019) .................................4, 17, 18

Cannon’s Precedents of the House of

Representatives of the United States

(1935) ..............................................................31, 32

Carney Files Answer to Ouster Charges,

Washington Evening Star (May 12, 1945) ..........25

Documentary History of the Ratification of the

Constitution (Merrill Jensen ed., 1976) ..............19

The Federalist (Clinton Rossiter ed., 1961)

No. 47 (James Madison) .................................18, 21

No. 65 (Alexander Hamilton) .........1, 17, 18, 19, 36

No. 66 (Alexander Hamilton) ...................19, 21, 37

No. 81 (Alexander Hamilton) ...............................19

Guffey on the Court, Washington Evening Star

(Jan. 27, 1937) ......................................................25

Hinds’ Precedents of the House of

Representatives (1907)...................................30, 31

Hoffer, Peter Charles & N.E.H. Hull,

Impeachment in America (1984) .......3, 4, 5, 17, 18

House Impeaches Judge Louderback, New

York Times (Feb. 25, 1933) ..................................25

Impeachment After Resignation, New York

Times (Nov. 6, 1926).............................................25

Impeachment of Gov. Long Suddenly Dropped

As 15 Louisiana Senators Hold Trial

Illegal, New York Times (May 17, 1929) .............25

Indiana Senate Bars Testimony on Death, New

York Times (Mar. 25, 1927) ................................25

Judge Hardy Listed on M’Pherson Books, New

York Times (Apr. 11, 1929) ..................................25

Judge Ritter Convicted by Senate, New York

Times (Apr. 18, 1936) ...........................................25

Langer to Face Test Vote Today, Washington

Evening Star (July 23, 1934) ...............................25

xii

Letter from Cowles Mead, Speaker of the

House of Representatives of the Mississippi

Territory, to James Madison, President of

the United States (Nov. 20, 1811) .......................30

Louderback Trial Opens in Senate,

Washington Evening Star (May 15, 1933) ..........25

Mueller, Robert, Report on the Investigation

into Russian Interference in the 2016

Presidential Election (2019) ........................8, 9, 43

New Method of Impeachment, New York Times

(Oct. 25, 1941).......................................................24

Records of the Federal Convention of 1787

(Max Farrand ed., 1911) ......................................19

Rehnquist, William H., Grand Inquests (1992) ........23

Ritter: Federal Judge Leaves Bench to Face

Bar of Justice, Newsweek (Apr. 25, 1936) ..........25

Robinson Title for Present Congress May Be

Historic, Washington Evening Star (Feb.

13, 1937)................................................................24

Scalia, Antonin & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts

(2012) ....................................................................26

Shumaker, Walter A. & George Foster

Longsdorf, The Cyclopedic Law Dictionary

(3d ed. 1940) .........................................................22

U.S. Senate, Impeachment (2020),

https://perma.cc/9BVA-CE2N ............................5, 8

Walton Loses Move to Stop His Trial, New

York Times (Nov. 8, 1923) ...................................25

INTRODUCTION

The Framers made impeachment a cornerstone

of our Constitution’s system of checks and balances.

It is the ultimate safeguard against Presidential

abuse. It is also the only way to remove federal

judges who commit crimes or engage in misconduct.

The question presented here is whether, in fulfilling

that essential constitutional function, the House of

Representatives is categorically barred from reviewing

the type of grand-jury material that is available for

use in ordinary civil and criminal litigation.

The text of Federal Rule of Criminal Procedure 6

makes clear that the answer is no. Rule 6(e)(3)(E)(i)

authorizes the disclosure of grand-jury material

preliminarily to a “judicial proceeding.” An impeachment trial falls squarely within the plain meaning

of that term. Impeachment originated in England,

where the House of Lords tried impeachments in its

capacity as the highest court in the realm. The

Constitution assigns the Senate the same judicial

function, empowering it to “try” impeachments and

render “[j]udgment.” U.S. Const., art. I, § 3, cls. 6-7.

Since the Founding, it has been recognized that

the Senate has a “judicial character” when it sits “as

a court for the trial of impeachments.” The Federalist

No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter

ed., 1961). In fact, the Senate formally “convene[s] as

a Court of Impeachment.” 166 Cong. Rec. S289 (Jan.

21, 2020) (the Chief Justice). This Court, too, has

long recognized that the Senate “exercises the

judicial power of trying impeachments.” Kilbourn v.

Thompson, 103 U.S. 168, 191 (1881). And every other

traditional indicator of ordinary meaning, including

dictionaries and common usage when Rule 6 was

adopted, further confirms that an impeachment trial

is a “judicial proceeding.”

The canon of constitutional avoidance compels

the same conclusion. “The power to impeach includes

a power to investigate.” Trump v. Mazars USA, LLP,

140 S. Ct. 2019, 2046 (2020) (Thomas, J., dissenting).

Recent history teaches that grand juries often

uncover evidence of official misconduct, including

misconduct that may warrant impeachment. And

whatever limits might constrain the House’s constitutional authority to investigate, there is no plausible

basis for flatly excluding a class of evidence that is

regularly disclosed to serve far lesser public purposes.

Until recently, all of this was uncontroversial.

The House has relied on grand-jury material in most

of the impeachment inquiries since Rule 6 was

adopted in 1946. Every court—in fact, every judge—

to consider the issue has agreed that Rule 6

authorizes such disclosures. And the Department of

Justice (DOJ) had taken the same position for almost

50 years, before abruptly reversing itself in this one

case. DOJ was right before, and it is wrong now.

Finally, even if the Court held that Rule 6(e) does

not expressly authorize the disclosure of grand-jury

material for impeachments, it should affirm on the

alternative ground that such disclosures are a valid

exercise of the courts’ inherent authority. At common

law, district courts had inherent authority to disclose

grand-jury material, including for impeachments.

Nothing in Rule 6(e)’s text withdraws that authority,

and history and context refute any suggestion that

the rule extinguished it by silent implication. If the

Court concludes that an impeachment trial is not

a “judicial proceeding” under Rule 6(e), moreover,

construing the rule to preserve that inherent authority would be the only way to render it consistent with

the House’s constitutional impeachment power.

STATEMENT OF THE CASE

The Constitution vests the House with “the sole

Power of Impeachment.” U.S. Const., art. I, § 2, cl. 5.

The House’s “investigative authority” in matters of

“presidential conduct” thus has “an express constitutional source.” Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725,

732 (D.C. Cir. 1974). Respondent, the House Committee on the Judiciary, is exercising that constitutional authority in its ongoing investigation into

President Trump’s efforts to obstruct inquiries into

foreign interference in the 2016 election. This case

involves the Committee’s attempt to obtain the

narrow set of grand-jury material discussed in Special

Counsel Robert Mueller’s report on the same subject.

A. The Constitution’s impeachment procedure

1. Impeachment has deep roots in English law.

“Impeachment in the House of Commons, with trial

in the House of Lords, originated in the fourteenth

century.” Peter Charles Hoffer & N.E.H. Hull,

Impeachment in America 1635-1805, at 3 (1984). The

House of Lords was England’s “highest court,” and its

jurisdiction to try impeachments “rested upon this

privilege.” Id. at 3, 6.

The colonists brought impeachment with them to

America. Early colonial assemblies asserted the

power to impeach corrupt or incompetent officials.

Impeachment in America 14. Later, impeachment

became part of a “primitive system of checks and

balances” and a way for the assemblies to challenge

royal appointees. Id. This history indelibly “link[ed]

impeachment with republicanism in the minds of

American thinkers.” Id.; see id. at 15-56.

Reflecting that connection, most of the newly

independent states included impeachment in their

constitutions. The drafters of those constitutions

recognized that trying impeachments in the upper

house of the legislature “violated the doctrine of a

strict separation of the functions of the legislative

and judicial branches.” Impeachment in America 77.

A few states responded by designating the state

supreme court as the impeachment tribunal, or by

creating a special court composed of both regular

judges and legislators. Frank O. Bowman III, High

Crimes and Misdemeanors 67, 75-79 (2019) (reproducing constitutional provisions). But “[t]rial in the

upper house was the most common resolution.”

Impeachment in America 77. State constitutions

answered the separation-of-powers concerns about

that arrangement by adopting “trial court procedures

at upper house impeachment proceedings.” Id. “When

state senates and councils sat to hear the trial of

impeachments,” therefore, “they became, temporarily,

courts of law.” Id.

2. The Framers of the federal Constitution

grappled with the same separation-of-powers concern

and landed on the same solution. For most of the

convention, the draft Constitution vested jurisdiction

to try impeachments in the regular federal courts or

in this Court. See Walter Nixon v. United States, 506

U.S. 224, 233 (1993). Hamilton proposed a special

tribunal of state-court judges. Id. at 244 (White, J.,

concurring in the judgment). Ultimately, however,

the Framers concluded that the Senate was “the least

of evils among the various trial courts.” Impeachment

in America 99; see Walter Nixon, 506 U.S. at 233-35.

Consistent with that judgment, the Constitution

vests the Senate with the “sole Power to try all

Impeachments.” U.S. Const., art. I, § 3, cl. 6. At every

turn, the Constitution instructs that an impeachment

trial is not ordinary legislative activity. Article I

directs that in an impeachment trial, Senators must

“be on Oath or Affirmation.” Id. It further provides

that “the Chief Justice shall preside” when the

President is tried and specifies the vote by which the

accused “shall be convicted.” Id. Article I also

prescribes the consequences of a “Judgment in Cases

of Impeachment.” Id., art. I, § 3, cl. 7. And Article III

exempts “Cases of Impeachment” from the general

requirement that the “Trial of all Crimes” must be

“by Jury.” Id., art. III, § 2, cl. 3.

3. In the 230 years since the Framing, the House

has impeached twenty officials: three Presidents, a

Senator, a Secretary of War, a Justice of this Court,

and fourteen federal judges. U.S. Senate, Impeachment (2020), https://perma.cc/9BVA-CE2N. All but

one of those impeachments led to a trial in the Senate.

Id. Consistent with the constitutional design, the

Senate “convene[s] as a Court of Impeachment” when

it sits to try an impeachment. 166 Cong. Rec. S289

(Jan. 21, 2020) (the Chief Justice). As required by

Article I, Senators take a special oath to “do impartial

justice according to the Constitution and laws.” Id. at

S290. And after the trial, “[t]he Presiding Officer

directs judgment to be entered in accordance with the

judgment of the Senate.” Id. at S938 (Feb. 5, 2020)

(the Chief Justice).

B. Federal Rule of Criminal Procedure 6(e)

1. Witnesses who provide evidence to a grand

jury have always been free to share it with the public.

See United States v. Sells Eng’g, Inc., 463 U.S. 418,

425 (1983). But grand jurors, and the prosecutors and

others who assist them, have long been prohibited

from disclosing material presented to the grand jury.

Id. at 424-25. That policy guards against interference

with active investigations, encourages candor, and

protects privacy. Id. at 424. This Court has long

recognized, however, that the need for disclosure of

grand-jury material sometimes “outweighs the public

interest in secrecy.” Douglas Oil Co. v. Petrol Stops

Nw., 441 U.S. 211, 223 (1979). The common law thus

recognized that “disclosure [wa]s wholly proper

where the ends of justice require[d] it.” United States

v. Socony-Vacuum Oil Co., 310 U.S. 150, 234 (1940).

Rule 6(e), which took effect in 1946, “continues

the traditional practice of secrecy on the part of

members of the grand jury, except when the court

permits a disclosure.” Fed. R. Crim. P. 6(e) advisory

comm. 1944 note. The rule imposes a general duty of

secrecy on grand jurors, prosecutors, and other

enumerated persons. Fed. R. Crim. P. 6(e)(2). It then

lists a series of exceptions. Rules 6(e)(3)(A) and (D),

for example, allow grand-jury material to be shared

with government officials—including those of a

“state, state subdivision, Indian tribe, or foreign

government”—for federal criminal law enforcement

and threat prevention. Those disclosures do not

require court approval.

Rule 6(e) also provides for a variety of courtauthorized disclosures. Most also involve government

officials—for example, grand-jury material may be

disclosed “when sought by a foreign court or

prosecutor for use in an official criminal investigation,” or when the material “may disclose a

violation of State, Indian tribal, or foreign criminal

law.” Fed. R. Crim. P. 6(e)(3)(E)(iii)-(iv).

As relevant here, Rule 6 has, since its adoption,

allowed a court to authorize disclosure of grand-jury

material “preliminarily to or in connection with a

judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E)(i); see

Federal Rules of Criminal Procedure, 327 U.S. 821,

837-38 (1946). Congress preserved that language

without change when it reenacted Rule 6 in 1977. See

Pub. L. No. 95-78, § 2(a), 91 Stat. 319-20. Rule 6 itself

does not prescribe a standard governing such disclosures, but this Court has held that the party

seeking grand-jury material must establish a “particularized need.” United States v. Proctor & Gamble

Co., 356 U.S. 677, 683 (1958).

In Douglas Oil, the Court held that this standard

requires a showing that the material “is needed to

avoid a possible injustice in another judicial proceeding,” that “the need for disclosure is greater than

the need for continued secrecy,” and that the request

“is structured to cover only material so needed.” 441

U.S. at 222. “The Douglas Oil standard is a highly

flexible one, adaptable to different circumstances and

sensitive to the fact that the requirements of secrecy

are greater in some situations than in others.” Sells

Eng’g, 463 U.S. at 445. The standard’s application is

committed “to the considered discretion of the district

court.” Douglas Oil, 441 U.S. at 228.

2. Between the adoption of Rule 6 and the

beginning of the investigation at issue here, there

were six impeachments and the near-impeachment of

President Nixon. U.S. Senate, Impeachment (2020),

https://perma.cc/9BVA-CE2N. In five of those cases,

the House obtained and relied on grand-jury material:

the investigation of President Nixon, and the impeachments of President Clinton and Judges Alcee Hastings,

Walter Nixon, and Thomas Porteous. Pet. App. 14a15a. In each case, courts authorized the disclosure

after concluding that an impeachment trial is a

“judicial proceeding” under Rule 6(e). Id. No judge has

ever dissented. And DOJ took the same position for

decades, supporting each of the prior disclosures as

authorized by Rule 6(e). Id. 138a-39a n.30.1

C. The present controversy

1. In July 2016, the Federal Bureau of Investigation (FBI) began investigating Russian interference in the then-upcoming Presidential election. In

May 2017, the Acting Attorney General appointed

Robert Mueller as Special Counsel to continue the

FBI’s work and to investigate related matters,

including whether the President had obstructed

justice. Robert Mueller, Report on the Investigation

into Russian Interference in the 2016 Presidential

See Haldeman v. Sirica, 501 F.2d 714, 715 (D.C. Cir.

1974) (en banc) (President Nixon); In re Madison Guar. Sav. &

Loan Ass’n, No. 94-1 (D.C. Cir. Spec. Div. July 7, 1998) (per

curiam) (reprinted at C.A. App. 267) (President Clinton); In re

Request for Access to Grand Jury Materials, 833 F.2d 1438,

1439-40 (11th Cir. 1987) (en banc) (Judge Hastings); H. Rep. No.

101-36, at 15 & n.46 (1989) (citing Nixon v. United States, Civ.

No. H88-0052(G) (S.D. Miss. Dec. 5, 1988)) (Judge Nixon); In re

Grand Jury Proceeding, No. 09-30737 (5th Cir. Nov. 12, 2009),

summarily aff’g No. 09-4346 (E.D. La. Aug. 6, 2009) (Judge

Porteous).

Election, Vol. I at 8 (2019) (Mueller Report), https://

perma.cc/6E3T-MD7T.

In March 2019, Special Counsel Mueller issued a

report finding that President Trump’s conduct raised

“questions about whether he had obstructed justice”

by attempting to impede the Russia investigation and

related law enforcement proceedings. Mueller Report,

Vol. II at 1. But the report stopped short of determining whether President Trump had committed

criminal obstruction of justice, in part to avoid

“preempt[ing] constitutional processes for addressing

presidential misconduct”—that is, impeachment. Id.

2. In April 2019, the Attorney General released a

redacted version of the Mueller Report to Congress

and the public. Many of the redactions cover grandjury material subject to Rule 6(e). Pet. App. 90a-93a.

In June 2019, the House authorized the Committee to seek a court order allowing disclosure of that

material for use in its ongoing impeachment investigation. H. Res. 430, 116th Cong. (2019). The redacted

grand-jury material bears on whether the President

committed impeachable offenses, including by obstructing the Special Counsel’s investigation. Pet.

App. 88a-93a; see, e.g., Mueller Report, Vol. I at 85,

93-94, 98, 100-02, 110, 111-12; C.A. App. 726-29

(redacted declaration describing the grand-jury material in Volume II of the Mueller Report).

Judiciary Committee Chairman Jerrold Nadler

issued protocols to protect the confidentiality of any

grand-jury material obtained. C.A. App. 122-23. The

protocols are based on those successfully used to

protect grand-jury material disclosed to the House

during the investigation of President Nixon. Among

other things, they strictly limit staff access and

require that grand-jury material be stored in a secure

location. Id.

3. In July 2019, the Committee filed an application seeking the redacted grand-jury material in the

U.S. District Court for the District of Columbia. The

application invoked both Rule 6(e)(3)(E)(i)’s “judicial

proceeding” provision and the court’s inherent authority. The Committee requested three categories of

grand-jury material: (1) the portions of the Mueller

Report redacted under Rule 6(e); (2) any grand-jury

transcripts or exhibits referenced in those redactions;

and (3) grand-jury transcripts or exhibits that relate

directly to certain individuals and events described in

the Mueller Report. Pet. App. 103a-04a. DOJ opposed

the application, reversing “its longstanding position

regarding whether impeachment trials are ‘judicial

proceedings.’ ” Id. 138a n.30.

4. In October 2019, the district court granted the

Committee’s application in part. Pet. App. 82a-181a.

The court first held that impeachment trials are

“judicial proceedings” under Rule 6(e). Id. 117a. The

court grounded that holding in “historical practice,

the Federalist Papers, the text of the Constitution,

and Supreme Court precedent.” Id.

The court next determined that the requested

disclosure is “preliminary to” a judicial proceeding

because “the primary purpose” of the Committee’s

investigation is “to determine whether to recommend

articles of impeachment.” Pet. App. 157a.

The court then held that the Committee had

established “particularized need” under the Douglas

Oil standard. Pet. App. 163a-78a. The court noted

that it “would be difficult to conceive of a more

compelling need” than the national interest in an

impeachment inquiry “based on all the pertinent

information.” Id. 166a (citation omitted). After reviewing the record, including a sealed ex parte

declaration describing some of the withheld material,

see id. 5a-6a, the court concluded that specific

features of this case make the Committee’s need

“especially particularized and compelling,” id. 167a.

The court found, for example, that the redacted grandjury testimony could “shed[] light on inconsistencies

or even falsities” in testimony the same witnesses

gave during the House’s investigation. Id. 169a.

The court further explained that the usual

considerations justifying grand-jury secrecy “ ‘became

less relevant’ once the Special Counsel’s investigation,

and attendant grand jury work, concluded.” Pet. App.

175a (brackets omitted) (quoting Douglas Oil, 441

U.S. at 223). The court found that any risk to “future

grand juries’ ability to obtain ‘frank and full testimony’ ” was “slim” given the limited scope of the disclosures and the Committee’s protective protocols. Id.

175-76a (quoting Douglas Oil, 441 U.S. at 222).

Balancing the Douglas Oil factors, the court concluded

that the “minimal” need for secrecy was “easily

outweighed by [the Committee’s] compelling need for

the material.” Id. 178a.

Finally, the court held that the Committee’s

request was appropriately tailored as to the material

quoted and referenced in the Mueller Report. The

court authorized disclosure of that material, but

directed that the Committee would have to file

“further requests” establishing particularized need

for any of the additional grand-jury material sought

in its original request. Pet. App. 165a; see id. 178a.

5. The D.C. Circuit affirmed. Pet. App. 1a-81a.

Although they differed on issues not relevant here,

Judges Rogers, Griffith, and Rao unanimously agreed

that an impeachment trial is a “judicial proceeding.”

Pet. App. 27a; see id. 37a (Rao, J., dissenting).

Like the district court, the D.C. Circuit concluded

that “traditional tools of statutory construction,”

“constitutional text,” and “historical practice” show

that an impeachment trial is a “judicial proceeding”

under Rule 6(e). Pet. App. 11a-15a. The D.C. Circuit

also concluded that the district court acted well

within its broad discretion in finding particularized

need. Analyzing the Douglas Oil factors, the court

emphasized the narrow scope of the disclosure, which

includes “only those materials that the Special

Counsel found sufficiently relevant to discuss or cite”

in a report written “with the expectation that Congress

would review it.” Id. 16a-17a.

The D.C. Circuit further concluded that the

Committee’s particularized need for those materials

“remains unchanged” following events that occurred

while the appeal was pending. Pet. App. 17a. In

December 2019, the House adopted Articles of

Impeachment charging President Trump with abuse

of power and obstruction of Congress in connection

with a scheme to coerce Ukraine to announce an

investigation into former Vice President Biden—a

matter not addressed in the Mueller Report. The

Senate acquitted the President on those charges. But

the Committee “has continued and will continue” its

impeachment investigation concerning the Russia

investigation. H. Rep. No. 116-346, at 159 n.928

(2019). The material at issue here “remains central to

the Committee’s ongoing inquiry.” Comm. C.A. Supp.

Br. 17; see Pet. App. 4a-5a. The D.C. Circuit thus

noted that the Committee had “repeatedly stated that

if the grand jury materials reveal new evidence of

impeachable offenses, the Committee may recommend

new articles of impeachment.” Pet. App. 17a.

Judge Rao “agree[d] with the majority” that a

“Senate impeachment trial” has “always been understood as an exercise of judicial power.” Pet. App. 37a.

She explained that the Framers understood the

Constitution “to vest in the Senate a ‘distinct’ nonlegislative power to act in a ‘judicial character as a

court for the trial of impeachments.’ ” Id. (quoting The

Federalist No. 65 (Alexander Hamilton)). And she

added that this Court “has consistently recognized the

Senate as a court of impeachment parallel to the

federal courts.” Id. (citing Mississippi v. Johnson, 71

U.S. 475, 500-01 (1867), and Kilbourn v. Thompson,

103 U.S. 168, 191 (1881)). Judge Rao dissented on

other grounds not relevant here. Id. 41a-81a.

SUMMARY OF THE ARGUMENT

I. It would be astonishing if Rule 6 authorized

disclosure of grand-jury material for ordinary law

enforcement by federal, state, local, tribal, and foreign

governments—and even for civil litigation—but not

for the impeachment proceedings at the heart of the

Framers’ system of checks and balances. Fortunately,

the rule does no such thing: An impeachment trial is

a “judicial proceeding” under Rule 6(e).

A. An impeachment trial falls squarely within

the plain meaning of “judicial proceeding.” Everyone

agrees that the term includes, at a minimum,

proceedings before a court. DOJ Br. 16-17. English

and colonial history, the text of the Constitution, the

Framers’ understanding, and early Senate practice

all show that the Senate sits as a court when it

“exercises the judicial power of trying impeachments.”

Kilbourn v. Thompson, 103 U.S. 168, 191 (1881).

That understanding remained equally strong

when Rule 6 was adopted in 1946. Every traditional

indicator of ordinary meaning—from dictionaries, to

the Senate’s own proceedings, to this Court’s opinions,

to contemporary usage—confirms that an impeachment trial was recognized as a “judicial” proceeding

in which the Senate sat as a “court.” That usage was

thus anything but “idiosyncratic.” DOJ Br. 17.

B. DOJ lacks any traditional argument about the

plain meaning of “judicial proceeding.” Instead, it

leads its brief with an extended argument that a

plain-meaning interpretation of that term would not

fit with other provisions of the Federal Rules of

Criminal Procedure where the term appears. But one

of those provisions is perfectly consistent with

interpreting “judicial proceeding” to include an

impeachment trial. And the text of the other provisions makes clear that they refer to only a subset of

“judicial proceedings.” For example, those provisions

exclude state-court cases, but no one can reasonably

doubt that such cases are “judicial proceedings”

under Rule 6(e). So too with an impeachment trial.

C. A plain-meaning interpretation of “judicial

proceeding” is consistent with longstanding practice.

Throughout our Nation’s history, the House and

Senate have considered grand-jury material in

impeachments and in the exercise of their authority

to judge the qualifications of their Members and to

punish Members for misconduct—two other special

circumstances where the House and Senate exercise

judicial power. DOJ has not identified any example of

a court invoking grand-jury secrecy to refuse to

provide material for use in an impeachment. That

unbroken history provides further reason to adhere to

a plain-meaning interpretation of the rule.

D. A plain-meaning interpretation of Rule 6 is

also the only one consistent with the Constitution.

The House’s impeachment power includes the authority and duty to investigate official misconduct—

indeed, the Framers referred to an impeachment as

an “inquest.” It would flout that constitutional

authority to categorically deny to the House evidence

that would be available to a regular prosecutor, a

foreign government, or an ordinary civil litigant.

DOJ offers no response to that grave separationof-powers problem. Instead, it asserts that allowing

the House to obtain grand-jury material under Rule

6(e) would somehow invade the House and Senate’s

impeachment powers. But decades of history show

that it would not. And DOJ’s assertion that courts

have avoided constitutional difficulties only by impermissibly diluting the Douglas Oil standard is wrong.

If anything, the courts below applied that standard

with more rigor than this Court did in its most

analogous precedent, a case authorizing a far broader

disclosure in service of a civil suit brought by DOJ.

See United States v. John Doe, Inc. I, 481 U.S. 102,

105-06, 112-13 (1987).

II. Even if this Court holds that an impeachment

trial is not a judicial proceeding under Rule 6(e), it

should affirm on the alternative ground that the

district court’s disclosure was a permissible exercise

of its inherent authority. At common law, district

courts had inherent authority to disclose grand-jury

material in the interests of justice, including for

impeachments. Nothing in the text of Rule 6 purports

to withdraw that authority. And interpreting the rule

to do so by silent implication would infringe on the

House’s constitutional power to investigate official

misconduct.

ARGUMENT

An impeachment trial is a judicial proceeding

under Rule 6(e).

A. An impeachment trial falls squarely within

the plain meaning of “judicial proceeding.”

This Court gives the Federal Rules of Procedure

“their plain meaning.” Bus. Guides, Inc. v. Chromatic

Commc’ns Enters., 498 U.S. 533, 540 (1991) (citation

omitted). As in interpreting a statute, therefore, the

Court’s task is to interpret the words of Rule 6 in a

manner “consistent with their ‘ordinary meaning’ at

the time” they were adopted. Wis. Cent. Ltd. v.

United States, 138 S. Ct. 2067, 2070 (2018) (citation

and ellipsis omitted). The term “judicial proceeding”

has “remained unchanged” since Rule 6 was adopted

in 1946 and thus “presumptively retains its original

meaning.” Whitfield v. United States, 574 U.S. 265,

267 (2015).

In 1946, as today, the term “judicial proceeding”

meant a proceeding “wherein judicial action is

invoked and taken,” including proceedings in “a court

of justice.” Black’s Law Dictionary 986-87 (4th ed.

1951); see Black’s Law Dictionary 1458 (11th ed.

2019). DOJ effectively concedes as much. Br. 16-17.

The question, then, is whether the Senate sits as a

court, or takes judicial action, when it tries an

impeachment. The Constitution makes clear that it

does. And all traditional indicia of ordinary meaning

confirm that the same understanding prevailed when

Rule 6 was adopted in 1946.

The Constitution gives the Senate the

judicial power of trying impeachments.

English and colonial history, the text of the

Constitution, the Framers’ understanding, and early

Senate practice all show that the impeachment-trial

procedure created by the Constitution is a judicial

proceeding.

1. The Framers did not create impeachment out

of whole cloth; they “borrowed” a legal procedure with

centuries of history in England and the colonies. The

Federalist No. 65, at 397 (Alexander Hamilton); see

Impeachment in America 3-14. That procedure was

unquestionably judicial: The House of Lords tried

impeachments because it was England’s “general

supreme court.” Akhil Reed Amar, America’s Constitution: A Biography 210 (2005); see Impeachment in

America 3, 6.

Impeachment kept its judicial character when it

crossed the Atlantic. As in England, the upper houses

of colonial legislatures often acted as courts of last

resort and tried impeachments along with their other

judicial responsibilities. America’s Constitution 210;

see Impeachment in America 14. And in Pennsylvania, which lacked an upper house, two Lieutenant Governors refused to hear impeachments

precisely because they “had no judicial authority” and

thus were “not a proper substitute for the House of

Lords.” High Crimes and Misdemeanors 59; see

Impeachment in America 34-35, 43-45.

Impeachment remained a judicial proceeding in

the newly independent states. Some states vested

jurisdiction to try impeachments in the regular

courts and others in special courts constituted for the

purpose. High Crimes and Misdemeanors 67. But

most assigned that function to the upper legislative

house, with procedures making clear that those

bodies became “courts of law” when they “sat to hear

trial of impeachments.” Impeachment in America 77;

see The Federalist No. 47, at 304-06 (James Madison)

(describing these upper houses as “court[s]” or

“judicial tribunal[s]” for impeachments).

2. The Framers adopted the same approach.

Article I provides that “[t]he Senate shall have the

sole Power to try all Impeachments.” U.S. Const.,

art. I, § 3, cl. 6. It describes a “Judgment in Cases of

Impeachment.” Id., art. I, § 3, cl. 7. And it refers to

“the Party convicted.” Id. Article III similarly

describes an impeachment as a type of “Trial of all

Crimes.” Id., art. III, § 2, cl. 3 (all emphases added). A

trial for a crime in which the Senate convicts or

acquits the accused and renders a judgment is a

judicial proceeding. And the Constitution underscores

impeachment’s judicial character by specifying that

when the President is tried, “the Chief Justice shall

preside.” Id., art. I, § 3, cl. 6.

3. That is exactly how the Framers understood

things. They recognized that the Impeachment Clause

“vest[s] in the Senate a ‘distinct’ non-legislative

power to act in a ‘judicial character as a court for the

trial of impeachments.’ ” Pet. App. 37a (Rao, J.)

(quoting The Federalist No. 65 (Alexander Hamilton)).

During the convention, for example, delegates stated

that the Constitution made the Senate “the Court of

Impeachments” and allowed it to exercise the “[j]udiciary power[].” 2 Records of the Federal Convention of

1787, at 522-23 (Max Farrand ed. 1911) (James

Wilson); see id. at 500 (Gouverneur Morris) (“Court of

Impeachment.”); id. at 551 (Charles Pinkney) (same);

id. at 563 (Edmund Randolph) (same).

In the Federalist Papers, Hamilton described the

Senate as a “court” for the trial of impeachments at

least a dozen times. The Federalist Nos. 65-66, 81, at

396-400, 402-05, 482, 485. Another prominent voice in

the ratification debates likewise emphasized that,

although the Senate had “a much smaller share of the

judicial power than the upper house in Britain,” it

retained judicial power over “[i]mpeachments.” 2 Docu-

mentary History of the Ratification of the Constitution

142-43 (Merrill Jensen ed. 1976) (Tench Coxe).

4. The Senate’s practice in the years just after the

Framing reflected the same understanding of its role.

When the Senate took up its first impeachment in

1798, involving Senator William Blount, it “formed

itself into a High Court of Impeachment, in the

manner directed by the Constitution.” 8 Annals of

Cong. 2245 (1798). At the conclusion of the trial, Vice

President Jefferson announced that “[t]he Court is of

opinion that the matter alleged in the plea of the

defendant is sufficient in law to show that this Court

ought not hold jurisdiction of the said impeachment.”

Id. at 2319 (1799).

The Senate followed the same model in the early

Republic’s other impeachments. In 1804, the trial of

Judge John Pickering began with a proclamation that

the Senate was “sitting as a Court of Impeachments.”

13 Annals of Cong. 319 (1804). Later that year, the

Senate sat “as a High Court of Impeachments” to try

Justice Samuel Chase. 14 Annals of Cong. 89 (1804).

And in 1830, the Senate again “resolved itself into a

Court of Impeachment” for the trial of Judge James

Peck. 7 Cong. Deb. 9 (1830).

5. DOJ dismisses all of this evidence, insisting

that the meaning of the Constitution’s impeachment

clauses is “irrelevant.” Br. 21. Instead, DOJ asserts

that the focus should be on the ordinary meaning of

“judicial proceeding.” Id. But that meaning is not in

dispute—everyone agrees that a judicial proceeding

includes proceedings before a court. Id. at 16-17. The

question is whether an impeachment trial falls

within that agreed-upon meaning. That is a question

about the nature of impeachment. And on that

question, the meaning of the constitutional provisions

establishing the impeachment procedure is not merely

relevant, but dispositive.

DOJ appears to suggest that the correct question

is instead whether the drafters of Rule 6 would have

expected it to apply to an impeachment. E.g., Br. 21.

But “[t]hat is exactly the sort of reasoning this Court

has long rejected.” Bostock v. Clayton Cty., 140 S. Ct.

1731, 1750 (2020). The Court interprets legal texts

based on their “plain terms,” not speculation about

the drafters’ “expected applications.” Id.; see Pa.

Dep’t of Corr. v. Yeskey, 524 U.S. 206, 211-12 (1998).

In any event, as we explain below, the general understanding that an impeachment trial is a judicial proceeding remained as strong when Rule 6 was adopted

in 1946 as it had been in 1789. See infra pp. 21-26.

6. DOJ also asserts that “the Framers did not

view impeachment to be ‘judicial’ in anything like the

ordinary sense.” Br. 22. But DOJ offers little to

substantiate that assertion. DOJ primarily insists

that the Framers cannot have meant what they

repeatedly said because the Constitution vests the

“judicial power” of the United States in the Article III

courts. Contemporary critics of the proposed Constitution likewise objected that giving the Senate the

power to try impeachments “confounds legislative

and judiciary authorities in the same body.” The

Federalist No. 66, at 401 (Alexander Hamilton). But

the Framers did not respond, as DOJ would, that

impeachment trials are not truly “judicial.”

Instead, Hamilton and Madison explained that

the Constitution’s system of separation of powers

allows for this “partial intermixture” of the legislative

and judicial powers “for special purposes” like

impeachment. The Federalist No. 66, at 401 (Alexander Hamilton); see id. No. 47, at 304-06 (James

Madison); see also Trump v. Mazars USA, LLP, 140

S. Ct. 2019, 2046 (2020) (Thomas, J., dissenting).

That response removes any doubt that when the

Founders consistently referred to impeachment as

“judicial” and the Senate as a “court,” they were very

much using those words in “the ordinary sense.” DOJ

Br. 22.

Every traditional indicator of ordinary

meaning confirms that an impeachment

trial is a judicial proceeding.

The Constitution makes impeachment a judicial

procedure in which the Senate sits as a court. That

should resolve the question presented, because it

establishes that an impeachment trial falls within

the agreed-upon meaning of “judicial proceeding.”

But the answer would not change if one instead

asked whether an ordinary English speaker would

have regarded an impeachment trial as a judicial

proceeding when Rule 6 was adopted in 1946. To find

“evidence of [a] term’s meaning,” this Court looks to

“dictionaries,” “legal authorities,” and usage reflected

in contemporary writings. New Prime, Inc. v. Oliveira,

139 S. Ct. 532, 539-40 (2019); see, e.g., Whitfield, 574

U.S. at 267-68 & nn.1-4. All of those traditional

sources confirm that in 1946, just as at the Founding,

a Senate impeachment trial was understood to be a

“judicial proceeding.”

1. Start with contemporary dictionaries. The

Fourth Edition of Black’s Law Dictionary listed “[t]he

Senate of the United States, sitting as a court of

impeachment” as the first of the “courts of the United

States.” Black’s Law Dictionary 435 (4th ed. 1951);

see also Black’s Law Dictionary 451 (11th ed. 2019)

(defining the “U.S. Senate” as a “court for the trial of

impeachments”). Other contemporary dictionaries

likewise recognized that “in cases of impeachment”

the Senate “acts as a court.” Walter A. Shumaker &

George Foster Longsdorf, The Cyclopedic Law Dictionary 783 (3d ed. 1940); see 2 Bouvier’s Law Dictionary 2402 (8th ed. 1914) (same).

2. The Senate’s own contemporaneous practice

tells the same story. The last impeachment trial

before the adoption of Rule 6 was that of Judge

Halsted Ritter in 1936. Just as it had done in the

first decades of the Nation’s history, the Senate

formally convened “as a Court of Impeachment.” 80

Cong. Rec. 3489 (1936) (the Vice President). It did the

same for the impeachment before that, the 1933 trial

of Judge Harold Louderback. 77 Cong. Rec. 3394

(1933) (the Vice President) (“[T]he senate is now in

session sitting as a Court of Impeachment.”).

To this day, the Senate “convene[s] as a Court of

Impeachment” when it sits to try impeachments. 166

Cong. Rec. S289 (Jan. 21, 2020) (the Chief Justice).

The Senate’s rules likewise distinguish between its

legislative proceedings and “the proceedings when

sitting as a Court of Impeachments.” Rule IV.1(d),

Standing Rules of the Senate, 113th Cong. (2013).

And during President Clinton’s trial, Chief Justice

Rehnquist ruled that Senators should not be referred

to as jurors, because “the Senate is not simply a jury;

it is a court in this case.” S. Doc. No. 106-4, Vol. II at

1142 (1999).2

3. Similarly, this Court has long recognized that

the Senate “exercises the judicial power of trying

impeachments.” Kilbourn v. Thompson, 103 U.S. 168,

191 (1881). The Court has also recognized that the

Senate sits as a “court of impeachment.” Mississippi

v. Johnson, 71 U.S. 475, 501 (1867); see, e.g., The

Pocket Veto Case, 279 U.S. 655, 672 n.1 (1929);

Walton v. House of Representatives of Okla., 265 U.S.

487, 489 (1924) (state senate); see also Chandler v.

Judicial Council, 382 U.S. 1003, 1006 (1966) (Black,

J., dissenting).

During the impeachment of President Johnson, the

Senate deleted references to itself as a “court” from its impeachment rules after some Senators expressed concern that this

characterization might allow the Chief Justice to cast a vote.

See William H. Rehnquist, Grand Inquests 219 (1992). But the

advocates, the Senators, the Chief Justice, and the press still

referred to the Senate as a “court” throughout the trial. See,

e.g., id. at 237, 239; Cong. Globe, 40th Cong., 2d Sess. Supp. 12,

28, 63, 111, 121, 209, 290, 342, 395, 412, 415 (1868).

State courts, too, in describing both federal

impeachments and their state equivalents, have

repeatedly explained that “[i]n impeachment trials,”

the Senate “sits as a court and, of course, exercises

judicial powers.” People v. Swena, 296 P. 271, 272

(Colo. 1931). This repeated usage by courts around

the Nation provides still more evidence that an

impeachment trial was commonly regarded as a

judicial proceeding when Rule 6 was adopted.3

4. Other contemporaneous usage reinforces that

conclusion. In 1941, for example, a New York Times

editorial noted that “the Senate has sat twelve times

as a court of impeachment.” New Method of Impeachment, N.Y. Times., Oct. 25, 1941, at 16. In 1937, the

Washington Evening Star observed that “when the

Senate sits as a court of impeachment . . . it exercises

its judicial power.” Robinson Title for Present

Congress May Be Historic, Wash. Evening Star, Feb.

See, e.g., Van De Griff v. Haynie, 28 Ark. 270, 274 (1873)

(“the senate is a high court for the trial of impeachments”); In re

Carter, 74 P. 997, 998 (Cal. 1903) (the U.S. Senate sits as “a

high court of impeachment” (citation omitted)); Clark v.

Herring, 260 N.W. 436, 438 (Iowa 1935) (“the Senate as a court

of impeachment”); Henderson v. Hovey, 27 P. 177, 178 (Kan.

1891) (“court of impeachment”); Yancey v. Commonwealth, 122

S.W. 123, 125 (Ky. 1909) (“An impeachment proceeding is a

judicial proceeding.”); Dullam v. Willson, 19 N.W. 112, 115

(Mich. 1884) (“[t]he senate, sitting as a court”); State v. Beadle,

111 P. 720, 722 (Mont. 1910) (“There can be no question that the

Senate ‘sitting as a court of impeachment’ is a court—a body

exercising judicial functions.”); State v. Hill, 55 N.W. 794, 797

(Neb. 1893) (“the senate of the United States, sitting as a court

of impeachment”); Ferguson v. Wilcox, 28 S.W.2d 526, 533 (Tex.

1930) (“The Senate in the trial of impeachment cases is a court

of original, exclusive, and final jurisdiction.”).

13, 1937, at B1; see, e.g., Guffey on the Court, Wash.

Evening Star, Jan. 27, 1937, at A8 (“The Senate,

under the Constitution, sits as a court in impeachment trials.”).

The front-page Times story describing the last

impeachment verdict before Rule 6’s adoption called

the Senate “a court of impeachment.” Judge Ritter

Convicted by Senate, N.Y. Times Apr. 18, 1936, at 1;

see, e.g., Ritter: Federal Judge Leaves Bench to Face

Bar of Justice, Newsweek, Apr. 25, 1936, at 44 (the

trial “changed the Senate into a court of impeachment”). The front-page story on the preceding

impeachment similarly stated that the Senate would

act “as an impeachment court.” House Impeaches

Judge Louderback, N.Y. Times Feb. 25, 1933, at 1;

see, e.g., Louderback Trial Opens in Senate, Wash.

Evening Star, May 15, 1933, at A2 (“court of

impeachment”). Other examples abound in contemporary coverage of state impeachments.4

See, e.g., Carney Files Answer to Ouster Charges, Wash.

Evening Star, May 12, 1945, at A3 (“the Senate sitting as a

court”); Bay State Executive Pleads Innocent at Impeachment

Trial, Wash. Evening Star, Aug. 5, 1941, at A6 (“High Court of

Impeachment”); Langer to Face Test Vote Today, Wash.

Evening Star July 23, 1934, at A2 (“court of impeachment”);

Impeachment of Gov. Long Suddenly Dropped As 15 Louisiana

Senators Hold Trial Illegal, N.Y. Times May 17, 1929, at 1

(“Senate Court of Impeachment”); Judge Hardy Listed on

M’Pherson Books, N.Y. Times Apr. 11, 1929, at 2 (same);

Indiana Senate Bars Testimony on Death, N.Y. Times Mar. 25,

1927, at 27 (“Senate sitting as a court of impeachment”);

Impeachment After Resignation, N.Y. Times. Nov. 6, 1926, at 16

(same); Walton Loses Move to Stop His Trial, N.Y. Times, Nov.

8, 1923, at 3 (“State Senate Court of Impeachment.”).

5. DOJ ignores most of this evidence of ordinary

meaning. Nor does it muster anything resembling a

traditional textual argument of its own. Instead, DOJ

simply asserts without citation that it would be

“idiosyncratic” to call an impeachment a “judicial

proceeding” or the Senate a “court.” Br. 17. DOJ

builds much of its brief around that premise. But it is

demonstrably wrong: A usage employed by Hamilton,

Madison, the Senate, this Court, state supreme

courts, dictionaries, and contemporary newspapers is

not “idiosyncratic”—it is the very definition of

ordinary meaning.

DOJ also urges this Court to depart from a plainmeaning approach, asserting that “exceptions to

grand-jury secrecy must be interpreted narrowly.”

Br. 24. But the passing statement on which DOJ

relies did not adopt such a rule of narrow construction. See United States v. Sells Eng’g, Inc., 463

U.S. 418, 425 (1983). And even if it had, this Court

has more recently disapproved such statements in its

prior opinions, explaining that it has “no license to

give statutory exemptions anything but a fair

reading.” Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356, 2366 (2019) (brackets and citation

omitted) (rejecting argument that “FOIA exemptions

should be narrowly construed”); see Encino Motorcars,

LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018)

(disapproving “the principle that exemptions to the

[Fair Labor Standards Act] should be construed

narrowly”). As in those cases, “there is no reason to

give [Rule 6’s] exceptions anything other than a fair

(rather than a ‘narrow’) interpretation.” Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 363 (2012).

B. A plain-meaning interpretation of “judicial

proceeding” is consistent with the other

uses of that term in the Federal Rules of

Criminal Procedure.

Lacking a traditional argument about the

ordinary meaning of “judicial proceeding,” DOJ leads

its brief with an extended argument based on other

provisions of the Federal Rules of Criminal Procedure

that use that term. Br. 17-20. DOJ offers the

following syllogism: (1) the term “judicial proceeding”

does not include a Senate impeachment trial in those

other provisions; (2) the term must have the same

meaning throughout the Rules; (3) therefore, the

term cannot include an impeachment trial in Rule

6(e)(3)(E)(i). That logic dissolves upon examination.

1. Rule 6(e)(3)(F)(ii) requires a court that

receives an application for disclosure of grand-jury

material for use in a judicial proceeding to afford “the

parties to the judicial proceeding” an opportunity to

be heard. DOJ asserts that this provision “would

make little sense if ‘judicial proceeding’ included a

Senate impeachment trial.” Br. 17. But experience

shows otherwise. Here, the Committee served its

application on the President, who is the other relevant

“party.” Certificate of Service (July 30, 2019), Dkt.

No. 3. The President could have appeared and been

heard, just as past subjects of impeachment have

done. See, e.g., In re Grand Jury Investigation of U.S.

Dist. Judge G. Thomas Porteous, Jr., No. 09-4346

(E.D. La. Aug. 6, 2009) (noting opposition filed by

Judge Porteous).

DOJ quibbles that “the House Judiciary Committee would not be a ‘party’ to any Senate impeachment,” which instead would be brought by “the full

House of Representatives.” Br. 20; see Br. 17. But the

Committee is participating in this case as the House’s

authorized representative. H. Res. 430, 116th Cong.

(2019). And even if that were somehow insufficient to

satisfy Rule 6(e)(3)(F)(ii), it would not establish any

difficulty with applying that provision to impeachments. At most, it would mean that future applications for grand-jury materials should be formally

captioned as being filed by the House rather than one

of its Committees.

2. DOJ also invokes Rule 6(e)(3)(G), which

directs that “[i]f the petition to disclose arises out of a

judicial proceeding in another district,” the petitioned

court generally “must transfer the petition to the

other court.” DOJ observes that a district court could

not transfer a petition to the Senate, and it leaps to

the conclusion that an impeachment trial thus cannot

be a “judicial proceeding.” Br. 17. But a district court

receiving a petition for the disclosure of grand-jury

material for use in a state court likewise could not

transfer the petition to that court. Yet no one

reasonably doubts that cases in state court are “judicial

proceedings” under Rule 6(e). See Fed. R. Crim. P.

6(e)(3)(E) advisory comm. notes on 1983 amend.

The explanation is simple: As DOJ itself concedes

a few pages later (Br. 19), Rule 6(e)(3)(G)’s transfer

requirement does not apply in every case where

disclosure is sought in connection with a “judicial

proceeding.” By its terms, the provision applies only

“if ” the proceeding is in another federal district court.

Fed. R. Crim. P. 6(e)(3)(G). It has no application if the

judicial proceeding in question is in a different type of

court—whether it be a state court, the Tax Court, see

United States v. Baggot, 463 U.S. 476, 479 (1983), or

the Senate sitting as a court of impeachment.

3. DOJ next cites Rule 53, which provides that

“the court must not permit the taking of photographs

in the courtroom during judicial proceedings or the

broadcasting of judicial proceedings.” Br. 18. DOJ’s

point appears to be that a Senate trial is not among

the “judicial proceedings” covered by Rule 53. But

that is because, like Rule 6(e)(3)(G), Rule 53 does not

purport to cover all “judicial proceedings”—it reaches

only federal criminal cases, not (for example) civil or

state judicial proceedings. Once again, therefore, the

fact that an impeachment trial is not among the

subset of “judicial proceedings” covered by Rule 53

does not mean that it is not a “judicial proceeding”

under Rule 6(e)(3)(E)(i).

4. Finally, DOJ invokes Rule 1, which says that

the Federal Rules of Criminal Procedure “apply in

numerous types of specified ‘proceedings.’ ” Br. 18.

DOJ emphasizes that a Senate impeachment trial is

not among the listed proceedings. Id. But that does

not suggest that an impeachment trial is not a

“judicial proceeding.” It simply reflects the obvious

reality that this Court’s authority to prescribe rules

“for cases in the United States district courts,” 28

U.S.C. § 2072(a), does not authorize it to regulate

procedure in a Senate impeachment trial.

C. A plain-meaning interpretation of “judicial

proceeding” is consistent with longstanding

practice.

Throughout our Nation’s history, the House and

Senate have considered grand-jury material in

impeachments and in the exercise of their authority

to judge the qualifications of their Members and

punish Members for misconduct—two other special

circumstances where the House and Senate exercise

a form of “judicial” power. Barry v. United States,

279 U.S. 597, 613 (1929); see U.S. Const., art. I, § 5,

cls. 1-2. That unbroken history—which includes

precedents before, contemporaneous with, and after

the adoption of Rule 6(e)—provides further reason to

adhere to a plain-meaning interpretation of the rule.

1. In 1811, a grand jury in the Mississippi Territory prepared a presentment describing its investigation into the conduct of Judge Harry Toulmin and

recommending his impeachment. 3 Hinds’ Precedents

of the House of Representatives § 2488, at 984-85

(1907) (Hinds ). The grand jury addressed the report

to the territorial legislature, requesting that it be

forwarded to the House for action by “that Tribunal

who has the power constitutionally placed in them to

examine the conduct of such Officer and to deprive

him of that Office.”5 The legislature sent the report to

the House, which ultimately found the charges to be

without merit. 3 Hinds § 2488, at 985.

DOJ dismisses the Toulmin precedent, asserting

that it “did not involve compulsory process, judicial

involvement of any sort, or even secret grand jury

material.” Br. 27 (citation omitted). But the first two

statements are irrelevant, and the third is misleading. The common law generally barred grand

Letter from Cowles Mead, Speaker of the House of

Representatives of the Mississippi Territory, to James Madison,

President of the United States, at 2-3 (Nov. 20, 1811), https://

perma.cc/ZBN4-8ZJV (attaching a copy of the presentment).

jurors from disclosing what had transpired before the

grand jury in any circumstances—not just under

compulsory process or with judicial involvement. See

Sara Sun Beale et al., Grand Jury Law & Practice

§ 5.2 (Nov. 2019). And the material in the report had

ceased to be secret only because the grand jury

disclosed it to the territorial legislature with the

specific purpose that it be sent to the House for

consideration as possible grounds for impeachment.

The Toulmin episode thus stands as an early

precedent for the release of otherwise-undisclosed

grand-jury material for an impeachment inquiry.

2. In the early 20th century, Congress on several

occasions received grand-jury material for use in

investigations of the conduct of its Members. Pet.

App. 127a-29a. In 1902, for example, a House committee investigating allegations of election fraud

relied on “a report of a grand jury.” 2 Hinds § 1123, at

700. And in 1924, a Senate committee investigating a

Senator who had been indicted obtained the names of

the witnesses who had testified before the grand jury

from the judge who had supervised it. 6 Cannon’s

Precedents of the House of Representatives of the

United States § 399, at 565 (1935) (Cannon’s); see 65

Cong. Rec. 8864 (1924) (Sen. Borah).6

DOJ notes (Br. 28) that the judge declined to provide the

“documentary evidence” that had been before the grand jury. 65

Cong. Rec. 8865 (1924) (Sen. Borah). But he did so because the

evidence had been “impounded,” not because of grand-jury

secrecy. Id. And grand-jury secrecy cannot have been the

concern, because the judge disclosed the names of grand-jury

witnesses and other information about the grand jury’s

In the same year, the House commenced an

investigation into two unnamed Members who had

been implicated in a grand jury report. 6 Cannon’s

§ 402, at 573-74. In response to a request from the

House, the Attorney General offered to turn over “all

the evidence now in the possession of anyone

connected with the Department of Justice,” including

the evidence presented to the grand jury, if the House

wished to conduct its own investigation before DOJ’s

criminal investigation continued. Id. at 574.7

DOJ dismisses these examples, asserting that

because they “did not involve impeachment,” they

“shed no light on whether a Senate impeachment

trial would have been considered a ‘judicial proceeding’ at the time of Rule 6(e)’s adoption.” Br. 28.

But that misses the point. Along with impeachment,

the House and Senate’s authority to “judge the

elections, returns, and qualifications of [their] own

members” and to discipline their Members are other

instances where those bodies exercise “powers which

are not legislative, but judicial.” Barry, 279 U.S. at

613; see America’s Constitution 210-11. And taken

together, these examples “evince a common-law

tradition, starting as early as 1811, of providing

grand-jury materials to Congress to assist” with

those special judicial functions. Pet. App. 14a.

actions—and also because the Attorney General later provided

the Senate with “photostatic copies” of the relevant evidence. Id.

DOJ objects that this episode began with a public grandjury report. Br. 28 n.4. But the significance of the precedent is

not the public report that spurred the House to action; it is the

Attorney General’s willingness to disclose to the House all

evidence in DOJ’s possession, including grand-jury material.

3. An episode that took place in 1945, while

proposed Rule 6(e) was pending before Congress,

provides further proof of that common-law tradition.

A district court ordered “that all transcripts of

testimony, together with all the exhibits introduced

into evidence before [a] . . . grand jury, be made

available to the Committee on Judiciary” for use in

the impeachment investigations of two federal judges.

Conduct of Albert W. Johnson and Albert L. Watson,

United States District Judges, Middle District of

Pennsylvania: Hearing Before Subcomm. of the H.

Comm. on the Judiciary, 79th Cong., pt. 1, at 63

(1945) (Johnson & Watson Hearings) (reproducing

the court’s order). Excerpts of grand-jury testimony

were read into the record during those impeachment

proceedings. Id., pt. 1, at 84-91; id., pt. 2, at 929-46.

It is highly implausible that Congress, in allowing

Rule 6 to take effect, understood itself to be

precluding the very type of court-ordered disclosure

on which it was actively relying in ongoing impeachment proceedings. And that is especially true because

Rule 6(e) was intended to “continue,” not disrupt,

traditional common-law practice. Fed. R. Crim. P.

6(e) advisory comm. 1944 note.

4. In the decades since Rule 6(e)’s adoption,

courts have uniformly concluded that it authorizes

the disclosure of grand-jury material for use in

impeachment proceedings. The D.C. Circuit, for

example, famously authorized the disclosure of the

Watergate grand jury’s “Roadmap,” which featured

prominently in the impeachment investigation of

President Nixon. Haldeman v. Sirica, 501 F.2d 714,

715 (D.C. Cir. 1974) (en banc); see Pet. App. 11a-12a.

Just a few years later, Congress reenacted Rule

6(e) in its entirety. Pub. L. No. 95-78, § 2, 91 Stat.

319 (1977). “Congress is presumed to be aware of an

administrative or judicial interpretation of a statute

and to adopt that interpretation when it re-enacts a

statute without change.” Lorillard v. Pons, 434 U.S.

575, 580 (1978). And that presumption has special

force here: The Congress that reenacted Rule 6(e)

was surely aware of the D.C. Circuit’s recent highprofile decision in Haldeman and its own use of the

Watergate Roadmap when it readopted Rule 6(e)’s

“judicial proceeding” language without modification.

Moreover, the House has sought, and courts have

authorized, the disclosure of grand-jury materials in

most of the impeachments since Watergate, including

the impeachments of President Clinton and three

federal judges. Pet. App. 14a-15a. During the same

period, Congress has amended Rule 6(e) four times,

in 1984, 2001, 2002, and 2004. Fed. R. Crim. P. adv.

comm. note. This Court has amended Rule 6(e) on

five other occasions, in 1979, 1983, 1985, 2002, and

2006. Id. Many of those amendments made finegrained adjustments to Rule 6(e)’s secrecy provisions,

demonstrating that Congress and the Advisory

Committee are attuned to the workings of the rule.

Yet all of the amendments left the provision

authorizing disclosure in connection with a “judicial

proceeding” untouched, further confirming that the

courts’ uniform interpretation of that provision as

encompassing impeachment trials is correct.

D. A plain-meaning interpretation of “judicial

proceeding” is compelled by the canon of

constitutional avoidance.

If there were any remaining doubt about the best

interpretation of “judicial proceeding,” it would be

extinguished by the canon of constitutional avoidance.

This Court has long emphasized that “where a

statute is susceptible of two constructions, by one of

which grave and doubtful constitutional questions

arise and by the other of which such questions are

avoided,” the Court’s “duty is to adopt the latter.”

United States v. Delaware & Hudson Co., 213 U.S.

366, 408 (1909); see Edward J. DeBartolo Corp. v.

Fla. Gulf Coast Bldg. & Const. Trades Council, 485

U.S. 568, 575 (1988). The Court applies the same

canon in construing the Federal Rules of Criminal

Procedure. See, e.g., United States v. Smith, 331 U.S.

469, 475 (1947).

The application of that venerable principle here

is straightforward: Rule 6(e) would violate the Constitution if it categorically precluded the House from

reviewing grand-jury materials in exercising its

impeachment power. DOJ ignores that fatal problem

with its new interpretation. Instead, it asserts that

allowing the House and Senate to seek grandjury material under Section 6(e) infringes on their

impeachment powers. But there is no merit to DOJ’s

attempt to invoke Congress’s own constitutional

responsibilities to deny it the very evidence necessary

to fulfill them.

Precluding the House from accessing

grand-jury material would violate the

Constitution.

The Constitution vests the House with “the sole

Power of Impeachment.” U.S. Const., art. I, § 2, cl. 5.

As with the exercise of its legislative authority, the

House cannot carry out its impeachment function

“wisely or effectively in the absence of information”

about the conduct at issue. McGrain v. Daugherty,

273 U.S. 135, 175 (1927); see Quinn v. United States,

349 U.S. 155, 160-61 (1955). History, too, confirms

that “[t]he power to impeach includes a power to

investigate and demand documents.” Mazars, 140

S. Ct. at 2046 (Thomas, J., dissenting). Indeed, “the

founding generation repeatedly referred to impeachment as an ‘inquest.’ ” Id. (citation omitted); see, e.g.,

The Federalist No. 65, at 397 (Alexander Hamilton)

(“a method of NATIONAL INQUEST into the conduct

of public men”).

Completely denying the House grand-jury material

necessary to an impeachment investigation would

trample on this crucial constitutional function. As

John Quincy Adams put it, “what mockery would it

be for the Constitution of the United States to say

that the House should have the power of impeachment,” but “not the power to obtain the evidence and

proofs on which their impeachment was based.”

Cong. Globe, 27th Cong., 2d Sess. 580 (1842).

Treating grand-jury material as off-limits would

also violate separation-of-powers principles, which

require that “a branch not impair another in the

performance of its constitutional duties.” Clinton v.

Jones, 520 U.S. 681, 701 (1997) (citation omitted).

Impeachment is “an essential check” on “the encroach-

ments of the executive.” The Federalist No. 66, at 402

(Alexander Hamilton). Yet DOJ’s interpretation of

Rule 6(e) could allow the Executive Branch to

effectively “wall off any evidence of presidential

misconduct from the House by placing that evidence

before the grand jury.” Pet. App. 139a.

Whatever the limits on the House’s authority to

demand evidence for an impeachment, they cannot

plausibly include a categorical exclusion of grandjury material—a result that would put the House in a

worse position than state, local, tribal, and foreign

governments, as well as private litigants seeking

grand-jury material for ordinary civil cases. In the

Watergate litigation, DOJ itself rightly dismissed

even the suggestion of such a result as “fatuous.” C.A.

App. 258.

Adhering to the plain meaning of

“judicial proceeding” creates no constitutional difficulty.

DOJ ignores the grave separation-of-powers

problems its interpretation would produce. Instead,

DOJ asserts that allowing the House to seek grandjury material under Rule 6(e) creates constitutional

difficulties. It does not. And to the extent that DOJ

veers into a thinly veiled effort to relitigate the lower

courts’ application of the Douglas Oil standard to the

facts of this case, its arguments are both procedurally

improper and wrong.

1. DOJ first observes that Rule 6(e)(3)(E) allows

a district court to authorize disclosure “at a time, in a

manner, and subject to any other conditions that it

directs.” Br. 33 (quoting Fed. Rule Crim. P. 6(e)(3)(E)).

DOJ notes that, under the Speech or Debate Clause,

a district court would likely be unable to enforce

some conditions on the disclosure of grand-jury

material to the House. Id. at 34. It could not, for

example, hold a Member of Congress in contempt for

revealing that material in a Committee meeting or on

the House floor. Cf. Gravel v. United States, 408 U.S.

606, 615-16 (1972). But nothing about that result

creates tension between Rule 6 and the Constitution.

Under Rule 6(e)(3)(E) as currently written, a

court authorizing disclosure of grand-jury material

for use in an impeachment investigation retains

authority to determine the “time” and “manner” of

disclosure, as the district court did here. For

example, a court could order that grand-jury material

be produced for in camera inspection by Members

and their staff on the court’s premises.

The Speech or Debate Clause might prevent a

court from imposing (or at least enforcing) other

conditions. But there is no anomaly in authorizing

disclosure in a context where district courts would

have limited authority to enforce certain conditions.

Rule 6(e)(3)(E)(iii) authorizes courts to disclose grandjury material to “a foreign court or prosecutor.” A

court’s ability to enforce conditions on such a

disclosure is likely to be subject to severe legal and

practical limitations.

Nor is there anything unusual about requiring a

court to comply with the Constitution when exercising

its discretion under a general provision like Rule

6(e)(3)(E). A court obviously could not, for example,

invoke Rule 6(e)(3)(E) to impose conditions that

violated a criminal defendant’s due process rights. Cf.

Dennis v. United States, 384 U.S. 855, 870-75 (1966).

Nor could it condition disclosure in a manner that

invaded the Executive Branch’s Article II powers.

The existence of such constitutional constraints does

not, as DOJ presumes, trigger the canon of constitutional avoidance. Br. 35. It simply means that the

authority conferred by Rule 6(e)(3)(E)—like that

given by countless other broadly worded provisions—

must be exercised in a manner consistent with the

Constitution.

Finally, DOJ goes astray when it suggests that

authorizing disclosure of grand-jury material to the

House without ongoing judicial control “would be an

invitation for abuse.” Br. 35. That is a policy argument, not a constitutional concern. And it is a bad

policy argument at that. As the court of appeals

emphasized, the House has preserved the confidentiality of the Watergate Roadmap for nearly half a

century. Pet. App. 21a-22a. Nor does DOJ cite any

instance of Congress mishandling the grand-jury

material it has received in other impeachments over

the years. In fact, DOJ offers no basis for impugning

the responsibility or integrity of a coordinate branch

of government. And to the extent DOJ relies on the

mere theoretical possibility of abuse, the same could

be said of the provisions of Rule 6 authorizing the

disclosure of grand-jury material to Executive Branch

officials other than the prosecutors handling the

matter before the grand jury. See, e.g., Fed. R. Crim.

P. 6(e)(3)(D).

2. DOJ also asserts that allowing the House to

seek grand-jury material under Rule 6(e) would

invade the prerogatives of the House and Senate by

requiring courts to determine the likelihood that the

House would vote to impeach and to scrutinize the

particular theories the House intends to pursue.

Br. 38. Experience shows otherwise. Courts considering the House’s requests for grand-jury material

have been sensitive to the constitutional issues and

have taken care to avoid impeding the House’s sole

power of impeachment or the Senate’s sole power to

try impeachments. In the case involving Judge

Hastings, for example, the Eleventh Circuit avoided

“the area reserved to the House by the Constitution”

by refraining from any “expression of the propriety or

impropriety of an impeachment.” In re Request for

Access to Grand Jury Materials Grand Jury No. 81-1,

833 F.2d 1438, 1446 (11th Cir. 1987). Here, too, the

lower courts refrained from “second-guess[ing] the

manner in which the House plans to proceed with its

impeachment investigation.” Pet. App. 26a.

DOJ appears to concede that the separation-ofpowers problems it posits have never arisen. But it

asserts that the lower courts have avoided those

problems only by failing to hold the House’s

applications to a sufficiently stringent version of

Douglas Oil’s “particularized need” standard. Br. 3642. There are three problems with that argument.

First, it is not a constitutional-avoidance argument at all. DOJ does not suggest that applying Rule

6(e)(3)(E)(i) in the context of an impeachment would

create any doubt about the constitutionality of any

provision of Rule 6. Instead, it asserts only that

application of the Douglas Oil standard would need to

account for the special considerations that apply in

the impeachment context. But the Douglas Oil standard is not the text of the rule; it is a judge-made

guide for the exercise of the broad discretion the rule

confers. The need to adjust such a guide to accom-

modate constitutional concerns is no reason to depart

from the plain meaning of Rule 6.

Second, this Court has emphasized that the

Douglas Oil standard already includes the necessary

flexibility. It is “highly flexible” and “adaptable to

different circumstances.” Sells Eng’g, 463 U.S. at 445.

“[T]he standard itself” thus “accommodates any relevant considerations, peculiar to government movants,

that weigh for or against disclosure in a given case.”

Id.; see Illinois v. Abbott & Assocs., 460 U.S. 557, 568

n.15 (1983). It gives courts ample room to recognize

the differences between a House request for grandjury material in an impeachment investigation and

an application from a private civil litigant.

Third, DOJ’s argument rests on a distortion of

the Douglas Oil standard. DOJ does not cite the

Court’s most recent and most detailed application of

the Douglas Oil standard, United States v. John

Doe, Inc. I, 481 U.S. 102 (1987). The omission is

telling, because Doe refutes DOJ’s assertion that

Douglas Oil requires courts to undertake intrusive

inquiries into the likelihood of an impeachment, the

merits of the theories the House plans to pursue, or

the importance of the evidence sought to those

theories.

In Doe, a district court authorized DOJ to share

grand-jury material with attorneys in the Civil

Division and the Southern District of New York so

they could consult about a possible civil suit under

the False Claims Act. 481 U.S. at 105-06. The

purpose of the requested disclosure was “to make a

decision on whether to proceed with a civil action.”

Id. at 113. The court placed no restrictions on which

grand-jury materials DOJ could disclose for that

purpose. Id. at 105-06.

DOJ argued that the sweeping authorization was

“altogether appropriate” because of “the legitimate

and limited purpose of [its] disclosure request.” U.S.

Br. 44, Doe, supra (No. 85-1613). This Court agreed,

emphasizing the flexibility of the Douglas Oil

standard. Doe, 481 U.S. at 112-13. In so doing, the

Court did not engage in any of the inquiries that DOJ

now insists Douglas Oil requires. The Court did not

ask, for example, “how firm” the chances of a civil

suit had been when the disclosure was sought (Br.

37); the “ ‘contours’ of the particular theories” being

considered for the civil case (Br. 38); or whether DOJ

“truly need[ed]” to share every piece of evidence in

the grand-jury record to have effective consultations

(Br. 38). There is thus no basis for DOJ’s assertion

that applying Douglas Oil in the impeachment

context requires any dilution of the flexible standard

that applies in other circumstances.

3. DOJ closes its brief with a direct attack on the

lower courts’ application of the Douglas Oil standard.

Br. 41-42. DOJ could have asked this Court to review

that fact-bound question, but it did not—presumably

because the application of Douglas Oil to the particular factual circumstances of this case plainly would

not have warranted this Court’s review. And having

secured a grant of certiorari by asking the Court to

review a clean legal question, DOJ should not be

permitted to smuggle in another issue that “is not

‘fairly included’ in the question presented.” Izumi

Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips

Corp., 510 U.S. 27, 31 (1993).

In any event, DOJ’s arguments are meritless. The

set of grand-jury materials at issue here is limited

and narrowly tailored to the disclosure of potential

impeachable offenses. It consists of the material

quoted in, or directly referenced by, the Special

Counsel’s report. The Special Counsel had been

specifically charged with investigating potential

Presidential misconduct. Mueller Report, Vol. I at 8.

The report concluded that there are “questions” about

whether the President “obstructed justice.” Id., Vol. II

at 1. It was prepared with the expectation that the

House would review it and in explicit deference to the

House’s impeachment power. Id. And the district

court specifically found, after reviewing an ex parte

description of some of the material at issue, that the

redacted grand-jury material is essential to understanding the Special Counsel’s conclusions and

determining whether witnesses in the House’s own

investigation lied. Pet. App. 167a-69a.

II. In the alternative, the district court’s order

was a permissible exercise of its inherent

authority.

In the alternative, the judgment below should be

affirmed because the district court’s order was a

proper exercise of its inherent authority to disclose

material to the House for use in impeachment. For all

the reasons discussed above, the House must have

the ability to access grand-jury material to fulfill its

constitutional functions. See supra pp. 36-37. If the

Court determines that the rule does not expressly

authorize that disclosure, then courts should be

allowed to disclose to the House under their longstanding inherent authority. That conclusion is consistent with the text, context, and history of Rule 6.

Any other result would hamstring the House in the

exercise of its impeachment function. And holding

that disclosures to the House fall within the courts’

inherent authority would also obviate DOJ’s constitutional concerns about the application of other

provisions of Rule 6 in the context of impeachments

(to the extent those concerns have merit at all).

This inherent-authority question is before the

Court because the Committee is entitled to “defend

its judgment on any ground properly raised below.”

Washington v. Yakima Indian Nation, 439 U.S. 463,

476 n.20 (1979); see Pet. App. 106a-07a; Comm. C.A.

Br. 28 n.1. Ordinarily, this Court might leave this

alternative ground for consideration on remand. But

that is not a viable option here because the D.C.

Circuit recently split with other circuits and held

that district courts lack inherent authority to disclose

grand-jury material. McKeever v. Barr, 920 F.3d 842,

850 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 597 (2020).

That circuit precedent would make a remand futile.

Accordingly, if the Court disagrees with the D.C.

Circuit’s interpretation of Rule 6(e), it should affirm

on the alternative ground that the district court’s

order was a valid exercise of its inherent authority.

1. Rule 6(e) “codifies” the traditional common-law

rule of grand-jury secrecy. Sells Eng’g, 463 U.S. at

425; Douglas Oil, 441 U.S. at 218 n.9. Indeed, when

Rule 6(e) was promulgated, the Advisory Committee

explained that the “rule continues the traditional

practice of secrecy on the part of members of the

grand jury, except when the court permits a

disclosure.” Fed. R. Crim. P. 6(e) advisory comm.

1944 note (citing several cases in which courts

exercised inherent authority to disclose grand-jury

material). The rule is thus “but declaratory of ” the

longstanding principle that “disclosure [is] committed

to the discretion of the trial judge.” Pittsburgh Plate

Glass Co. v. United States, 360 U.S. 395, 399 (1959).

It does not abrogate that power in circumstances not

addressed by the rule.

A court’s inherent supervisory authority over a

grand jury has long included the power to release

sealed grand-jury materials, which “rests in the

sound discretion of the [district] court.” United States

v. Socony-Vacuum Oil Co., 310 U.S. 150, 233 (1940);

cf. Pittsburgh Plate Glass, 360 U.S. at 399 (“[T]he

federal trial courts as well as the Courts of Appeals

have been nearly unanimous in regarding disclosure

as committed to the discretion of the trial judge.”).

Before the adoption of Rule 6(e), it was commonly

recognized that district courts’ release of grand-jury

materials “is wholly proper when the ends of justice

require it.” Socony-Vacuum Oil, 310 U.S. at 234. And

as explained above, that common-law authority

included the authority to disclose grand-jury material

to the House and Senate for use in impeachments

and investigations of the conduct of their Members.

See, e.g., Johnson & Watson Hearings at 63; see also

supra pp. 29-33 (discussing additional examples).

2. Rules of procedure ordinarily do not displace

courts’ traditional inherent authority on issues that

the rules do not expressly address. Although the

Federal Rules “set out many of the specific powers of

a federal district court,” they “are not all encompassing.” Dietz v. Bouldin, 136 S. Ct. 1885, 1891 (2016).

When a rule addresses some matters over which

courts historically exercised inherent authority but

not other, related matters, “the inherent power must

continue to exist to fill in the interstices.” Chambers

v. NASCO, Inc., 501 U.S. 32, 47 (1991); see Fed. R.

Crim. P. 57(b) (“[W]hen there is no controlling law . . .

[a] judge may regulate practice in any manner

consistent with federal law, these rules, and local

rules of the district.”). For that reason, this Court

does “ ‘not lightly assume that Congress has intended

to depart from established principles’ such as the

scope of a court’s inherent power.” Chambers, 501

U.S. at 47 (citation omitted). Instead, a rule abrogates

courts’ inherent authority only if it contains a “clear[]

expression of purpose” to do so, Link v. Wabash R.

Co., 370 U.S. 626, 631-32 (1962), or when it conflicts

with a court’s exercise of that power, Bank of Nova

Scotia v. United States, 487 U.S. 250, 254 (1988).

3. If this Court determined that Rule 6(e)’s

judicial-proceeding exception does not authorize the

disclosure of grand-jury materials in impeachment

investigations, the rule would not eliminate the

district courts’ inherent authority to make such

disclosures. Although Rule 6(e) governs disclosure in

the circumstances it specifically addresses, it neither

contains a clear expression of an intent to abrogate

district courts’ inherent authority to disclose material

in impeachments nor conflicts with district courts’

exercise of such power.

Rule 6(e)’s text, which imposes a secrecy

requirement on certain persons privy to grand-jury

proceedings, does not prohibit district courts from

disclosing grand-jury materials. Specifically, Rule

6(e)(2)(A) provides that “[n]o obligation of secrecy

may be imposed on any person except in accordance

with Rule 6(e)(2)(B).” Rule 6(e)(2)(B), in turn, states,

“[u]nless these rules provide otherwise, the following

persons must not disclose a matter occurring before

the grand jury.” It then enumerates seven categories

of persons who must keep grand-jury matters secret—

including grand jurors, court reporters, and attorneys

for the government. Id. District courts do not appear

on that list. Accordingly, Rule 6(e) by its terms does

not impose an obligation of secrecy on them. Cf. Sells

Eng’g, Inc., 463 U.S. at 425 (noting that grand-jury

witnesses are not forbidden from disclosing grandjury information because they do not appear in the

list of enumerated persons in Rule 6(e)(2)).

A different provision of Rule 6—paragraph

(e)(3)(E)—lists several scenarios in which a district

court “may authorize disclosure.” But that provision

contains no language displacing courts’ traditional

discretion to disclose grand-jury information for

impeachment investigations. Rather, it provides specific guidance for the most common instances in

which the need for grand-jury material may arise.

Indeed, as this Court has noted, since its adoption,

Rule 6(e) has been updated from time to time in

“recognition of the occasional need for litigants to

have access to grand jury transcripts,” Douglas Oil,

441 U.S. at 220, and in response to courts’ continuing

exercise of inherent authority to disclose such

material in circumstances not previously addressed

by the rule.

4. Reading Rule 6(e) to supplement, rather than

displace, district courts’ inherent authority accords

with a recent express interpretation by the Advisory

Committee, as well as the context in which the rule

was adopted and reenacted.

When interpreting the Federal Rules, this Court

has long recognized that “the construction given by

the [Advisory] Committee is ‘of weight.’ ” Schiavone v.

Fortune, 477 U.S. 21, 31 (1986) (quoting Mississippi

Pub. Corp. v. Murphree, 326 U.S. 438, 444 (1946)).

Here, the Advisory Committee recently confirmed

that Rule 6(e) is not meant to eliminate district

courts’ inherent authority to disclose grand-jury

materials in circumstances outside of the enumerated

provisions of Rule 6(e)(3)(E). In 2011, DOJ proposed

an amendment to Rule 6(e) that would have made

express the authority of the courts to disclose certain

historically significant grand-jury information. But

the Advisory Committee rejected the amendment

as unnecessary. The Committee explained that

“[d]iscussion among the full Committee revealed

consensus that, in the rare cases where disclosure of

historically significant materials had been sought,

district judges had reasonably resolved applications

by reference to their inherent authority.” Advisory

Comm. on Crim. Rules, Minutes 7 (Apr. 2012), https://

perma.cc/3WCA-TLBY.

Moreover, Congress reenacted Rule 6(e) in 1977,

after district courts’ inherent authority to disclose

grand-jury material was already well entrenched.

Because “Congress is understood to legislate against

a background of common-law adjudicatory principles,” Astoria Fed. Sav. & Loan Ass’n v. Solimino,

501 U.S. 104, 108 (1991), there is no reason to think

that Congress was eliminating this authority sub

silentio, see Link, 370 U.S. at 631-32.

Given the House’s established practice of

obtaining grand-jury material for impeachment

purposes, there is even less reason to believe that

Congress intended to eliminate all means by which it

could do so. Indeed, such an inference is extremely

difficult to credit. Just three years earlier, a district

court had released grand-jury information to the

House for use in its impeachment inquiry regarding

President Nixon. See supra pp. 33-34. As shown

above, Rule 6(e)(3)(E)(i) expressly authorizes such

disclosures as preliminary to a judicial proceeding.

But even if the rule did not contain such an express

authorization, it is highly unlikely that Congress

would have foreclosed every avenue for obtaining

such information by also eliminating courts’ inherent

authority to release it. And, given the prominence of

the events leading to President Nixon’s resignation, it

is even less probable that Congress would have done

so without even mentioning it.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,