The U.S. Court of Appeals for the D.C. Circuit upheld a lower court order that gives Congress access to certain secret material from Robert S. Mueller III’s investigation into Russian interference in the 2016 presidential election.
The 2-to-1 decision is unlikely to be the final word and does not mean the redacted material from Mueller’s final report will be immediately turned over to Congress. The ruling can be appealed to the full court or to the Supreme Court.
Judge Judith W. Rogers found the House in its impeachment investigation was legally engaged in a judicial process that exempts Congress from secrecy rules that typically shield grand jury materials from disclosure. Grand jury records, she noted, are court records — not Justice Department records — and have historically been released to Congress in the course of impeachment investigations involving three federal judges and two presidents.
“Where the Department is legally barred from handing over grand jury materials without court authorization, judicial restraint does not empower Congress; it impedes it,” wrote Rogers, who was joined by Judge Thomas B. Griffith.
Judge Neomi Rao, dissented, saying the House Judiciary Committee lacks legal grounds to ask the court to enforce a subpoena for the grand jury materials. Rao would have returned the case to District Court to determine whether the committee can still show its “inquiry is preliminary to an impeachment proceeding and that it has a ‘particularized need’ for disclosure.”
The Justice Department is reviewing the decision, spokeswoman Kerri Kupec said.
House Speaker Nancy Pelosi (D-Calif.) said in a statement: “This important appeals court decision upholds the House’s long-standing right to obtain grand jury information pursuant to the House’s impeachment power and makes clear that the release of grand jury information is the decision of the federal judiciary — not the Administration.”
The appeals court was reviewing an earlier ruling from Chief U.S. District Judge Beryl A. Howell. Justice Department lawyers had urged the appeals court to stay out of a political dispute between Congress and the Trump administration, and said exemptions allowing disclosure in certain cases do not apply to an impeachment proceeding.
Justice Department lawyers suggested a previous Watergate-era ruling affirming that grand-jury materials could be shared with the House during the investigation of President Richard Nixon had been wrongly decided.
But the court majority disagreed, finding that secrecy concerns do not outweigh the House’s need to review the material and its investigative powers.
The House Judiciary Committee’s “need for the grand jury materials remains unchanged. 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 a 26-page opinion.
“Courts must take care not to second-guess the manner in which the House plans to proceed with its impeachment investigation or interfere with the House’s sole power of impeachment,” wrote Rogers, a nominee of former president Bill Clinton.
The committee’s lawsuit was filed in July 2019 before the formal start of the impeachment inquiry centered on Trump’s alleged effort to pressure Ukraine to investigate former vice president Joe Biden, a potential 2020 political rival. But House lawyers told the court that lawmakers are still trying to determine whether Trump lied in written responses to Mueller’s investigators.
Lawmakers said they need access to redacted and underlying materials from Mueller’s report to try to establish a pattern of the president’s conduct.
Griffith, nominated by former president George W. Bush, wrote separately Tuesday to take issue with the dissent from Rao, a recent Trump nominee.
Griffith authored the D.C. Circuit’s divided opinion last week finding the court was not authorized to resolve a separate dispute between the White House and House Democrats over a congressional subpoena for Trump’s former counsel Donald McGahn.
In his concurring opinion Tuesday, Griffith wrote, “As gatekeepers of grand jury information, we cannot sit this one out. The House isn’t seeking our help in eliciting executive-branch testimony or documents. Instead, it’s seeking access to grand jury records whose disclosure the district court, by both tradition and law, controls. … Although I agree with the dissent that we have an independent obligation to assure ourselves of our jurisdiction,” Griffith wrote. “we need not chase jurisdictional phantoms.”