An appeals court upheld a lower court ruling on Tuesday, ordering the Justice Department to give the Democrat-led House Judiciary Committee access to secretive redacted grand jury materials contained within former special counsel Robert Mueller’s report.
The U.S. Court of Appeals for the D.C. Circuit ruled in a 2-1 vote to uphold U.S. District Court Chief Judge Beryl Howell’s October 2019 ruling that House investigators should be given access to the grand jury material redacted within and underlying Mueller’s report.
The 26-page appeals court opinion said, “It is the district court, not the Executive or the Department of Justice, that controls access to the grand jury materials at issue here.”
The Justice Department objected to disclosure because of “general purposes and policies of grand jury secrecy,” but the court said the arguments “do not outweigh the Committee’s compelling need for disclosure.”
The appeals court said “requests for grand jury materials” of this sort “necessarily require resolution by the courts.”
Howell wrote last fall amid the Ukraine-related impeachment efforts that “the need for continued secrecy is minimal and thus easily outweighed by [House Judiciary Committee’s] compelling need for the material.” The judge added that “tipping the scale even further toward disclosure is the public’s interest in a diligent and thorough investigation into, and in a final determination about, potentially impeachable conduct by the president described in the Mueller Report.”
Judge Judith Rogers, appointed to the bench by President Bill Clinton in 1993, wrote Tuesday’s opinion and was joined by Judge Thomas Griffith, a President George W. Bush appointee in 2005. The dissenter was Judge Neomi Rao, who joined the court after an appointment from President Trump in 2019.
“We are reviewing the decision,” DOJ spokeswoman Kerri Kupec told the Washington Examiner.
Democrats initiated their effort to gain access to the Mueller grand jury information last summer and claimed the material might “demonstrate the President’s motives for obstructing the Special Counsel’s investigation” and “also could reveal that Trump was aware of his campaign’s contacts with WikiLeaks.”
The Justice Department countered that “the need to ensure that all charged defendants receive fair trials and the need to preserve the integrity of ongoing investigations far outweigh the [Judiciary] Committee’s asserted need for the requested materials” and argued congressional impeachment proceedings are not official “judicial proceedings” and so the demand by the Democrats should be rejected.
“These arguments are foreclosed by our precedent and are unpersuasive in any event,” Rogers wrote. “The term ‘judicial proceeding’ has long and repeatedly been interpreted broadly, and courts have authorized the disclosure of grand jury materials ‘in an array of judicial and quasi-judicial contexts’ outside of Article III court proceedings.”
Rogers said, “Federal courts have authorized the disclosure of grand jury materials to the House for use in impeachment investigations involving two presidents and three federal judges.” The judge concluded that “the district court did not abuse its discretion” and “Mueller prepared his Report with the expectation that Congress would review it.”
The majority opinion noted Mueller’s report was cited by Democrats in their two articles of impeachment against Trump.
The first article detailed the Democratic allegations Trump abused his power in soliciting Ukraine to interfere in the 2020 presidential election to benefit him. That portion concluded with a reference to Trump’s comments during the 2016 campaign, claiming his Ukraine actions “were consistent with President Trump’s previous invitations of foreign interference in United States elections.”
Mueller that his investigation “identified numerous links between the Russian government and the Trump campaign” but did not find that Trump’s campaign “conspired or coordinated with the Russian government.”
The second article detailed Democratic claims of obstruction of Congress by using executive power to block subpoenas and witness testimony. That section ended with the claim that “these actions were consistent with President Trump’s previous efforts to undermine U.S. government investigations into foreign interference in United States elections.”
Mueller’s report, which laid out 10 possible instances of obstruction of justice, noted that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”
Attorney General William Barr and then-Deputy Attorney General Rod Rosenstein concluded that Trump hadn’t obstructed, but Democrats argued Mueller’s report gave them a road map.
The Democrat-led House impeached Trump on Dec. 18, and the GOP-controlled Senate acquitted the president on Feb. 5.
Rao asked in her dissent: “Why is this controversy not moot?”
“A reasonable observer might wonder why we are deciding this case at this time. After all, the Committee sought these materials preliminary to an impeachment proceeding and the Senate impeachment trial has concluded,” she said in her 45-page dissent. “The majority simply turns a blind eye to these very public events.”
Rao concluded, “The House lacks standing to seek compulsory process against the executive branch in this context” and said that, if it was up to her, she “would vacate the part of the district court’s order directing DOJ to disclose the grand jury materials.”
