The Supreme Court agreed to take up a case to decide whether secret grand jury materials from special counsel Robert Mueller’s report should be handed over to the Democratic-led House Judiciary Committee.
The high court granted a petition for a writ of certiorari Thursday. The Justice Department asked the Supreme Court to review the case, in which the Trump administration seeks to overturn an appeals court ruling ordering it to take the grand jury materials redacted within and underlying the Mueller report and hand it over to Congress.
The Supreme Court agreed to hear the case during its next term this fall. That means even if they prevail, the House Judiciary Committee will have to wait longer to gain access to the grand jury information, likely after November’s presidential election.
“I am disappointed by the Court’s decision to prolong this case further, but I am confident we will prevail. In every administration before this one, DOJ has cooperated with the Judiciary Committee’s requests for grand jury materials relating to investigations of impeachable offenses. Attorney General Barr broke from that practice, and DOJ’s newly invented arguments against disclosure have failed at every level,” House Judiciary Committee Chairman Jerry Nadler said in a statement.
“Unfortunately, President Trump and Attorney General Barr are continuing to try to run out the clock on any and all accountability,” the New York Democrat added. “While I am confident their legal arguments will fail, it is now all the more important for the American people to hold the President accountable at the ballot box in November.”
Solicitor General Noel Francisco, the Justice Department’s top litigator since 2017, argued in early June that the justices should reverse a lower court decision upheld by an appeals 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, adding, “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.”
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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 District of Columbia Circuit issued a 2-1 decision in March, ruling 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.
The Democratic-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?”
“After all, the committee sought these materials preliminary to an impeachment proceeding, and the Senate impeachment trial has concluded,” she said. “The majority simply turns a blind eye to these very public events.”
Howell wrote in the fall, during the Ukraine-related impeachment effort, that “the need for continued secrecy is minimal and thus easily outweighed by [the 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 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 to the Supreme Court.
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.
