It seems the Mueller report is going to come like a thief in the night. No one knows for sure when it will come or how much of it will be made public or given to Congress.
Whenever it is complete, current regulations may allow the Attorney General to prevent release of the report, but that does not need to be the end of the matter. There is an alternate way for the content of the Mueller Report to become public.
The Watergate Special Prosecutor’s grand jury paved the way forty-five years ago, establishing a method the Mueller grand jurors can utilize to get their work and materials to the people who count most just now: the members of the House Judiciary Committee. This, in turn, could allow the materials to be revealed to those who have a right and need to know the facts: all citizens and voters.
In the spring of 1974, the Watergate grand jurors returned an indictment against President Nixon’s top aides, named Nixon an unindicted co-conspirator, and delivered a two-page “Report and Recommendation” to Judge John Sirica, the federal judge overseeing their work. That Report was handed to Judge Sirica in a briefcase with voluminous evidence from their investigation, including documents, testimony, tapes, and transcripts. The grand jury specifically requested that materials in the briefcase be transmitted to the House of Representatives.
This material came to be referred to as the Road Map, as it pointed the way for Congress in its impeachment inquiry without drawing any conclusions or pointing to any specific crime.
Judge Sirica granted the grand jury’s request and transmitted the Road Map to Congress. His decision turned heavily on the fact that the grand jury itself had expressed its desire that otherwise secret materials should be sent to the House. He also took notice that the House Judiciary Committee had asked to receive the material to avoid the need to re-interview all the witnesses and to subpoena all the tapes and documents in order to substantially shorten the time needed for its impeachment inquiry.
This Watergate Road Map precedent gives Mr. Mueller and the current grand jury a way to proceed if they conclude that the evidence supports impeachable offenses or criminal charges against the president for conspiracy with Russia to interfere with the 2016 elections or for obstructing the special counsel’s investigation but they are prevented from indicting President Trump based on Office of Legal Counsel precedent that holds that a sitting president cannot be indicted no matter what the evidence shows (an opinion we believe has no basis in the Constitution).
Judge Sirica’s well-reasoned opinion was based on history, precedent and the specific facts of Watergate and was affirmed on appeal. The standard it set would allow disclosure of grand jury material to the House now. Of note, the Sirica opinion has been favorably cited by Chief Judge Beryl Howell, the federal judge who oversees the Mueller grand jury. Judge Howell did so just last year in response to a request from CNN for the release of still secret grand jury materials from the Clinton investigation.
One difference between then and now is that the grand jury in 1974 knew of an already existing impeachment inquiry by the House Judiciary Committee. “It is the belief of the Grand Jury that it should presently defer to the House of Representatives and allow the House to determine what action may be warranted at this time by the evidence,” the grand jurors wrote to Judge Sirica.
However, an existing impeachment inquiry is not a prerequisite for release of the grand jury’s evidence. The exclusive authority on matters of impeachment belongs to Congress. That is true whether there is an investigation formally underway or if one might be instituted based on evidence that the Mueller grand jury has assembled.
The logic is the materials should be available to Congress if impeachment is the question.
Another potential difference is that the Nixon White House did not object to the transmittal of the grand jury materials to Congress in the Watergate situation. But even if President Trump did object, likely sparking a Supreme Court test, that should not change the result.
“It should not be forgotten,” Judge Sirica wrote, “that we deal in a matter of the most critical moment to the nation, an impeachment investigation involving the President of the United States. It would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information.”
We think and hope that the Supreme Court would agree with Judge Sirica and we believe that the Mueller grand jury would have history on its side if they petition the supervising judge to release the fruits of their investigation to the House Judiciary Committee.
James D. Robenalt is a lawyer and the author of four nonfiction books, including January 1973, Watergate, Roe v Wade, Vietnam and the Month That Changed America Forever.
Jill Wine-Banks is currently an MSNBC Legal Analyst and former Assistant Watergate Special Prosecutor.