House Democrats Can Get Secret Mueller Evidence, Appeals Court Says

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March 10, 2020

A federal appeals court will allow the House Judiciary Committee to access secret grand jury materials from former special counsel Robert Mueller's investigation.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled two-to-one that the House can review redactions and other sealed materials from Mueller's sprawling two-volume report, pursuant to its impeachment power. Democrats have left open the possibility of a second impeachment depending on the contents of the grand jury information.

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"The Committee has established that it cannot 'fairly and diligently' make a final determination about the conduct described in both volumes of the Mueller Report 'without the grand jury material referenced' therein," the ruling reads.

Tuesday's decision has no immediate consequences, however, since a lengthy appeal to the full D.C. Circuit or the Supreme Court will follow. Though the materials could contain information harmful to President Donald Trump, congressional investigators won't take possession of the information for months, if not longer.

Grand jury proceedings and the materials they generate are generally kept secret. One exception to that rule allows the disclosure of protected information "in connection with a judicial proceeding." Writing for the majority, Judge Judith Rogers said House Democrats can obtain Mueller grand jury files under that exception since impeachment counts as a judicial proceeding. The committee's need for grand jury evidence is especially pressing, Rogers added, because Mueller never reached definitive conclusions about Trump's conduct.

"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.

Rogers noted the D.C. Circuit followed a similar course in the Watergate era, allowing the House Judiciary Committee to access a grand jury report and related information as it considered President Richard Nixon's impeachment.

Other factors make the Judiciary Committee's need especially compelling, Rogers said. For example, the grand jury materials could help lawmakers assess the credibility of certain witnesses since several individuals connected to the Mueller probe were convicted of making false statements. Rogers also said the administration's refusal to cooperate with congressional subpoenas is "of striking significance."

In dissent, Judge Neomi Rao said the court had no reason to resolve the dispute.

"A reasonable observer might wonder why we are deciding this case at this time," Rao wrote. "After all, the Committee sought these materials preliminary to an impeachment proceeding and the Senate impeachment trial has concluded," Rao wrote. "Why is this controversy not moot?"

Tuesday's ruling has little staying power compared with a February D.C. Circuit ruling allowing former White House counsel Don McGahn to defy a congressional subpoena. That decision involved broad principles of congressional oversight and judicial power, while Tuesday's case was limited to the unique circumstances of the Mueller probe.

Rogers said the February decision is different from Tuesday's case because grand juries operate under the auspices of the courts. Even though the Department of Justice currently houses Mueller grand jury information, the judiciary is the ultimate supervisor of grand jury proceedings.

"Because the Department of Justice is simply the custodian of the grand jury materials at issue however, the instant case is unlike inter-branch disputes where Congress issued subpoenas and directed Executive Branch officials to testify and produce their relevant documents," Rogers wrote.

The Mueller report contains numerous redactions for both secret grand jury information and for unspecified national security interests. House Democrats requested all portions of the report redacted under grand jury secrecy rules, transcripts and exhibits referred to in those redactions, and testimony or exhibits relevant to events described in the report.

U.S. District Judge Beryl Howell ruled that the Justice Department should hand those materials over to House Democrats in October. The department asked the D.C. Circuit to put that decision on hold, saying it "represents an extraordinary abrogation of grand-jury secrecy." The appeals court granted that request.

A Justice Department spokeswoman told the Washington Free Beacon that the DOJ is reviewing the decision.

The case is No. 19-5288 Committee on the Judiciary v. U.S. Department of Justice.

Published under: Robert Mueller