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Appeals court backs House Judiciary in ruling on Mueller materials

House impeachment counts as a 'judicial proceeding,' court found

Former Special Counsel Robert Mueller testifies during the House Intelligence Committee hearing on his investigation into Russian interference in the 2016 election on Tuesday July 24, 2019.
Former Special Counsel Robert Mueller testifies during the House Intelligence Committee hearing on his investigation into Russian interference in the 2016 election on Tuesday July 24, 2019. (Caroline Brehman/CQ Roll Call file photo)

The House Judiciary Committee can get access to grand jury materials from former Special Counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 presidential election, a federal appeals court in Washington ruled Tuesday.

The U.S. Court of Appeals for the District of Columbia Circuit gave the Justice Department seven days to ask for a rehearing or pursue an appeal before it would issue the court order to disclose the grand jury information to the committee.

[Arrest McGahn? House hints of possibility in court filing on subpoenas]

A three-judge panel of the D.C. Circuit found, in a 2-1 ruling, that the House’s impeachment of President Donald Trump counted as a “judicial proceeding,” which qualifies the committee for an exemption to rules that typically keep grand jury information secret.

And the D.C. Circuit found that the Judiciary Committee showed a need for specific parts of the grand jury materials, in part because of how Mueller also looked at Trump’s potentially criminal obstruction of justice actions to interfere with the investigation.

The majority opinion points to a part of Mueller’s report that states a criminal accusation against Trump could “potentially preempt constitutional processes for addressing presidential misconduct,” which refers to the House’s sole power of impeachment.

“Special Counsel Mueller prepared his Report with the expectation that Congress would review it,” Judge Judith W. Rogers, a Bill Clinton appointee, wrote for the majority. “The district court released only those materials that the Special Counsel found sufficiently relevant to discuss or cite in his Report.”

The D.C. Circuit ruling upheld a lower court ruling from October that the Justice Department — the custodian of the grand jury records that opposed the committee’s application — must disclose the material.

The majority opinion Tuesday balanced the needs for grand jury secrecy against the House’s need to investigate as part of an impeachment. The court decided the Justice Department doesn’t have any broader interest in objecting to the release of these materials “outside of the general purposes and policies of grand jury secrecy,” which “do not outweigh the Committee’s compelling need for disclosure.”

And the DOJ also already released information in the report that was redacted to avoid harm to peripheral third parties and to ongoing investigations, “thereby reducing the need for continued secrecy,” the majority opinion states.

In a dissent, Judge Neomi Rao, a Trump appointee, wrote that the committee lacks the legal right to bring the case and the judicial branch should stay out of disputes about information between the political branches. And she noted that the politics had moved faster than the courts.

“The Senate trial of President Trump concluded more than a month before publication of this opinion. Even when acting on an expedited basis, courts cannot move with the alacrity and speed of the political process,” Rao wrote. “And indeed, that process has moved on without our decisions.”

Judge Thomas Griffith, a George W. Bush appointee, defended the majority opinion from that view, writing in a concurrence that the courts are “gatekeepers of grand jury information” and “cannot sit this one out.”

“The House isn’t seeking our help in eliciting executive-branch testimony or documents,” Griffith wrote. “Instead, it’s seeking access to grand jury records whose disclosure the district court, by both tradition and law, controls.”

The committee has argued that the material — which the House first subpoenaed 10 months ago — was still key to an impeachment probe that focused on Trump’s dealings with Ukraine, in part because the Mueller report mentions Trump’s former campaign manager Paul Manafort’s interactions with the country.

The grand jury material also “bears on the President’s solicitation of interference by Ukraine” in the 2020 presidential election, specifically a passage in the Mueller report regarding a false theory that Ukraine rather than Russia interfered in the 2016 election and a supposed “peace plan” for Ukraine promoted by Russian interests, the House has argued in court.

Griffith wrote an opinion last month that would stop the House from having courts enforce its subpoena to force former White House Counsel Don McGahn to testify before the committee, because courts should stay out of such disputes between the political branches.

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