“I can understand why Republicans would like to interpret this morning’s decision as cutting off all access by congress to these materials. There’s probably something very damaging to the president there,” said a Democratic Judiciary Committee counsel. “But no court, including the D.C. Circuit in this morning’s case has ever held that Congress must be in an impeachment proceeding in order to access grand jury materials.”
To bolster their case, Judiciary Committee Chairman Jerry Nadler (D-N.Y.) has argued that Congress received access to grand jury material amassed by prosecutors in investigations of Presidents Richard Nixon and Bill Clinton. Ken Starr, the independent counsel who investigated Clinton, turned over a mountain of grand jury material to Congress, Nadler noted earlier this week.
“As a legal matter, the Judiciary Committee has always had access to grand jury material involving questions of presidential misconduct, and I can’t imagine the courts ultimately deciding otherwise in this case,” said Julian Epstein, who was the committee’s chief counsel in 1998, when Democrats received Starr’s grand jury evidence. “This Republican gamesmanship of wanting an impeachment declaration is childish form over substance, and the courts will not likely bow to that kind of rhetorical legerdemain.”