A federal appeals court gave the Justice Department 10 extra days to seek intervention by the Supreme Court before the agency must share grand jury materials from special counsel Robert Mueller’s investigation to the Democratic-led House Judiciary Committee.
The U.S. Court of Appeals for the District of Columbia Circuit on Friday rejected the Justice Department’s request to stay its ruling affirming a lower court order that it hand over secretive grand jury testimony redacted within and underlying Mueller’s report. 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.
Justice Department lawyers asked the appeals court late last month to stay an order to deliver those materials to Congress by May 1 while the Trump administration lawyers ready their petition for a writ of certiorari for the Supreme Court. The department now has until May 11.
Lawyers for the Democratic-led House Judiciary Committee argued earlier this week that the court should deny the DOJ request for a stay and called the case “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 “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 “the grand-jury material will inform its determination … whether to recommend new articles of impeachment.”
Much of the debate stems from the question of whether this year’s Senate impeachment trial constituted a “judicial proceeding.” The Justice Department said it did not, while Democrats insisted it did. The courts so far have agreed with the House Judiciary Committee.
Government lawyers said, “Reading the term to go beyond its plain meaning raises significant separation of powers concerns by rendering key portions” of the rules governing grand jury material “inoperative or unconstitutional in application.” The lawyers additionally warned of the “potential for harassment of the Executive Branch.”
The Justice Department said there was “good cause” for the mandate to be stayed and warned the agency might otherwise be required to turn over the grand jury information before the Supreme Court weighs in, “irreversibly breaching the secrecy of those materials” and “raising serious questions about whether they could ever be retrieved from Congress once in Congress’s possession.”
The Trump administration’s filing claimed that “any impeachment inquiry appears to be dormant.”
The appeals court opinion in March 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 appeals court said that “requests for grand jury materials” of this sort “necessarily require resolution by the courts.”
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.
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.”
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.”
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 “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.
Mueller said his investigation “identified numerous links between the Russian government and the Trump campaign,” but “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” 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, 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.”
