The Trump administration’s top litigator asked the Supreme Court on Thursday to block a lower court ruling requiring that the Justice Department disclose secret grand jury material from special counsel Robert Mueller’s investigation.
Noel Francisco, who has served as the solicitor general since 2017, filed a 37-page request with the high court, asking it to put a pause on a mandate by the U.S. Court of Appeals for the District of Columbia Circuit that upheld a ruling from the U.S. District Court in D.C. that ordered the Justice Department to hand the information over to the Democrat-led House Judiciary Committee.
The D.C. appeals court on Friday rejected the Justice Department’s request to stay its ruling, which affirmed the lower court’s order to provide the Mueller documents to House Democrats. The appeals court ruled in a 2-1 vote in March to uphold U.S. District Court Chief Judge Beryl Howell’s October 2019 ruling that House investigators should be given access to the material.
“Absent a stay of the court’s mandate, the government will have to disclose those materials on May 11, 2020, and … the government would suffer irreparable harm — for it would have to turn over the grand-jury records, thereby irrevocably surrendering their secrecy and possibly frustrating further judicial review of the merits of this dispute,” Francisco argued. “By contrast, respondent has not identified any urgent requirement for the requested materials in connection with an imminent Senate impeachment trial, and so would suffer no prejudice from a stay.”
He made it clear that the Trump administration hoped the Supreme Court would not just pause the lower court’s order but would also take up the case, arguing that “there is a reasonable probability that this Court will grant certiorari and a fair prospect that it will reverse the decision.”
The solicitor general said, “This case presents a straightforward legal question: whether a Senate impeachment trial is a ‘judicial proceeding’ … such that a district court may authorize a breach of grand-jury secrecy in connection with an impeachment.” Francisco wrote that “the court of appeals answered yes, and thus affirmed the district court’s order to disclose to respondent, in connection with a Senate impeachment trial of the President, all portions of special counsel Robert S. Mueller, III’s report on possible Russian interference in the 2016 election that were redacted to protect secret grand-jury matters, along with the underlying grand-jury transcripts and exhibits.”
Mueller identified “numerous links” between the Russian government and the Trump campaign but did not establish any criminal conspiracy. Months after Mueller’s work was finished, DOJ Inspector General Michael Horowitz released a report revealing flaws in the FBI’s Trump-Russia investigation, and newly declassified footnotes show that the FBI was aware that British ex-spy Christopher Steele’s dossier might have been compromised by Russian disinformation and used it anyway.
Francisco said that “the court of appeals’ interpretation defies the ordinary meaning of the term ‘judicial proceeding,’ creates tension with [the Supreme] Court’s precedents, and rewrites or sets aside other aspects of the Rule in an attempt to avoid substantial constitutional concerns.”
Lawyers for the Democratic-led House Judiciary Committee argued last week that the case was “a particularly poor candidate for Supreme Court review.” The Democrats said the “DOJ has not asserted that disclosure would harm any pending law enforcement matters” because “the Mueller grand jury has concluded its work” and because “grand-jury secrecy is no longer necessary to protect many of the core values that it serves during active investigations.”
The Democrats further argued that “any further delay in receiving the materials would cause the Committee significant, irreparable harm by impairing the House’s time-sensitive efforts to determine whether the President committed impeachable offenses.” The House Judiciary Committee said its “investigation into President Trump’s misconduct is ongoing” and that “the grand-jury material will inform its determination … whether to recommend new articles of impeachment.”
The Democrat-led House impeached Trump on two Ukraine-related articles of impeachment on Dec. 18, and the GOP-controlled Senate acquitted the president on Feb. 5. The Trump administration has highlighted how “any impeachment inquiry appears to be dormant.”
“[The Supreme] Court should stay the mandate of the court of appeals pending the timely filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court,” Francisco said. “The Court also should issue an administrative stay while it considers this application.”
Democrats initiated their effort to gain access to the Mueller grand jury information in the summer and claimed the material “could reveal that Trump was aware of his campaign’s contacts with WikiLeaks.”
