The Justice Department asked the Supreme Court to take up a case in which the Trump administration seeks to overturn an appeals court ruling ordering them to hand over secretive grand jury material from special counsel Robert Mueller’s report to Congress.
Solicitor General Noel Francisco, the Justice Department’s top litigator since 2017, filed a 29-page writ of certiorari along with 197 pages of appendices with the nation’s highest court Monday evening, arguing that the justices should reverse a decision upheld by a lower court.
House Democrats filed the lawsuit in July 2019, arguing that grand jury secrecy should not apply because they need it as part of a possible impeachment investigation into Trump. Much of the debate has centered on whether a Senate impeachment trial can be considered a judicial proceeding.
“Both Congress and this Court have made clear that grand-jury secrecy should not be breached outside the expressly enumerated exceptions in Rule 6(e). One of those exceptions allows disclosure ‘preliminarily to or in connection with a judicial proceeding.’ None allows disclosure in connection with a Senate impeachment trial,” Francisco told the Supreme Court on Monday. “Nevertheless, the court of appeals authorized disclosure on the ground that a ‘judicial proceeding’ extends beyond litigation before judges in courts to include an impeachment trial by elected legislators in the Senate. That interpretation contradicts the plain text of Rule 6(e), raises substantial separation-of-powers concerns, and is in serious tension with this Court’s precedents.”
“In light of the national prominence of this grand-jury investigation, the separation-of-powers concerns raised by the decision below, and the potential damage that decision could inflict on ‘the proper functioning of our grand jury system,’ this Court’s review is warranted,” he added.
In late May, the Supreme Court put a temporary halt to the appeals court decision telling the Justice Department to hand over the Mueller grand jury information, giving the Trump administration time to file a request for the Supreme Court to take up the case.
This came after the U.S. Court of Appeals for the D.C. Circuit issued a 2-1 decision in March, which ruled that the grand jury materials are court records, not DOJ records, that historically have been released to Congress in the course of impeachment investigations. The appeals court upheld U.S. District Court Chief Judge Beryl Howell’s October 2019 ruling that House investigators should be given access to the material.
Judge Judith Rogers, appointed to the bench by President Bill Clinton in 1993, wrote the March 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.
“The Committee has repeatedly stated that if the grand jury materials reveal new evidence of impeachable offenses, the Committee may recommend new articles of impeachment,” Rogers wrote in March.
Howell wrote last fall, during the Ukraine-related impeachment effort, that “the need for continued secrecy is minimal and thus easily outweighed by [House Judiciary Committee’s] compelling need for the material.” The judge said, “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.”
The House Judiciary Committee told the Supreme Court earlier in May it needed the records to decide whether to impeach Trump over his alleged obstruction of the Russia investigation or for some other reason in the future.
“If this material reveals new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles adopted by the House, the Committee will proceed accordingly — including, if necessary, by considering whether to recommend new articles of impeachment,” Democratic counsel Douglas Letter wrote in a 33-page motion to the Supreme Court.
The solicitor general told the Supreme Court that “to be sure, impeachments occur somewhat infrequently, but given the visibility and importance of impeachment to the Nation and our constitutional scheme, neither the relative rarity of impeachment nor the lack of a circuit conflict on the question presented lessens the need for this Court’s review, especially given the substantial separation-of-powers concerns that the court of appeals’ decision raises.”
“The term ‘judicial proceeding’ in that exception means a proceeding taking place before a judge in a court. That is — and always has been — the ordinary meaning of the term,” Francisco said. “Respondent has never disputed that the ordinary meaning of ‘judicial proceeding’ means a court proceeding. Treating a Senate impeachment trial — a proceeding before elected legislators — as a ‘judicial proceeding’ departs from that ordinary meaning.”
Mueller’s 448-page report, released in April 2019, said the Russians interfered in 2016 in a “sweeping and systematic fashion” but “did not establish that members of the Trump campaign conspired or coordinated with the Russian government.” The special counsel also laid out 10 possible instances of Trump obstructing justice but did not reach a conclusion. Attorney General William Barr and Deputy Attorney General Rod Rosenstein concluded Trump had not obstructed justice.
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 the FBI was aware that British ex-spy Christopher Steele’s dossier might have been compromised by Russian disinformation.
The Democrat-led House impeached Trump on Dec. 18 over alleged abuse of power and obstruction of Congress, 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 dissent. “The majority simply turns a blind eye to these very public events.”
