Nadler in 1998: Of course you can’t release grand-jury testimony in prosecutor’s report


Nothing is more consistent about partisan warfare in the Beltway than inconsistency. Today’s case in point comes from 1998 (and from Jeff Dunetz), when House Judiciary Committee member Jerrold Nadler (D-NY) objected to the idea that everything found by an independent prosecutor should get published for all to see. Nadler told Charlie Rose that Ken Starr’s report might contain “all kinds of material that it would be unfair to release,” including “statements which may or may not be true by various witnesses.” Besides, Nadler argued at the time, releasing grand-jury material violated federal law.

What a difference an (R) makes

NADLER: Well, we were just– the House was just reassembling today. We haven’t been in session for a month, so people were just arriving. I just got here in mid-afternoon, after having a series of meetings in New York. But we did get the report, which is now in the hands of the sergeant-at-arms under armed guard. It’s 36 boxes. We’re told it’s two copies, so it means 18 boxes per copy. There is, I gather, a 400- or 500-page report and the balance is appendices and supporting materials.

Now, Mr. Starr in his transmittal letter to the speaker and the minority leader made it clear that much of this material is Federal Rule 6(e) material, that is material that by law, unless contravened by a vote of the House, must be kept secret. It’s grand jury material. It represents statements which may or may not be true by various witnesses, salacious material, all kinds of material that it would be unfair to release. So, I assume what’s going to have to happen before anything else happens is that somebody — the staff of the Judiciary Committee, perhaps the chairman and ranking minority member — is going to have to go over this material, at least the 400 or 500 pages in the report to determine what is fit for release and what is, as a matter of decency and protecting people’s privacy rights, people who may be totally innocent third parties, what must not be released at all. Now, the House Rules Committee will be meeting overnight, and I presume that we will vote tomorrow probably on a recommended rule as to how to handle the report.

Emphases mine. If that sounds familiar, it should; William Barr and others have made the same arguments about the contents of the special counsel report from Robert Mueller. On top of that, the Department of Justice has specific policies that prohibit the release of investigative material involving anyone who hasn’t been indicted. James Comey did that twice and got fired over it. That is why Trey Gowdy argued last week that the Mueller report shouldn’t be released in any significant form, public curiosity be damned. The executive summary should suffice for public consumption.

There’s a goose/gander argument here, at least at first blush. Starr ended up releasing a significant amount of material in his final report (which ended up being sold as a book), so one argument would be that to do otherwise now would be inconsistent. Also, as noted above, Comey did it to Hillary Clinton, although he got fired for it, too. Both of these are easily parried, however. In the latter case, the FBI and DoJ had been leaking like sieves in this investigation until Mueller took over the case and imposed an impressive amount of discipline on it. As for Starr, he operated under a different statute that didn’t require him to answer to the DoJ or follow its policies. And it was Starr’s investigation that motivated Congress to get rid of that earlier independent-prosecutor statute and replace it with the more accountable special counsel office to which Mueller got appointed in this case.

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At any rate, don’t expect Nadler 2019 to be swayed by Nadler 1998, even if confronted by the latter, or any of those who still hold out hope of tripping up Donald Trump over Russiagate. They have rationalized away these objections long ago, as have Nadler’s House colleagues who are also leftovers from that period. The nature of 6(E) material hasn’t changed, but Nadler’s ambitions have. That’s all the consistency we can expect from Beltway veterans.

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