The action could mean that Congress will not receive the full Mueller report — without redactions of certain grand jury material — until after the November election, or perhaps not even during lawmakers’ current term, which ends Jan. 3.
As is customary, the short order gave no reason for granting the administration’s request to stay the decision reached by the U.S. Court of Appeals for the D.C. Circuit. The justices set a June 1 deadline for the administration to explain why the court should accept the case for full review.
If the justices do not accept the case, the lower court’s ruling would go into effect and House Democrats would gain access to the additional evidence. But if the court agrees with the request, a hearing would not be scheduled until the fall absent special action.
Solicitor General Noel Francisco had told the Supreme Court it should withhold the sensitive information until it could consider for itself “significant separation of powers” issues raised in the case. Despite the decision of the U.S. Court of Appeals for the D.C. Circuit, Congress has no immediate need for the information, Francisco wrote in a brief to the court.
“The House already has impeached the president, the Senate already has acquitted him, and neither [the committee] nor the House has provided any indication that a second impeachment is imminent,” Francisco wrote.
House General Counsel Douglas N. Letter had told the court that the withheld material “remains central to the committee’s ongoing investigation into the president’s conduct,” adding that the committee’s probe “did not cease with the conclusion of the impeachment trial.”
The House went to court in July before the formal start of its impeachment proceedings involving the president’s alleged effort to pressure Ukraine to investigate former vice president Joe Biden, now the presumptive Democratic nominee to challenge Trump in November. A divided D.C. Circuit found that the House was legally engaged in a judicial process that exempts Congress from secrecy rules that typically shield grand jury materials from disclosure.
Mueller’s report found insufficient evidence to conclude that the Trump campaign conspired with Russia, and Mueller neither exonerated nor accused Trump of obstructing justice. The Justice Department released a redacted version of Mueller’s report and said it would provide congressional leaders with the full report minus the grand jury materials. It said Attorney General William P. Barr lacked discretion to release that information.
In its 2-to-1 opinion, the D.C. Circuit said grand jury records 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.
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,” wrote Judge Judith Rogers, who was joined by Judge Thomas B. Griffith.
“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,” Rogers wrote.
Judge Neomi Rao dissented, saying the 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 that its “inquiry is preliminary to an impeachment proceeding and that it has a ‘particularized need’ for disclosure.”
Francisco had told the Supreme Court that its intervention was needed because release of the grand jury material to Congress would almost surely mean either a leak or simply its release.
Letter disputed that, saying Congress in the past has protected grand jury information.
Francisco replied the committee is not bound by any such rules, and “may publicly disclose the grand jury materials if it wishes by a simple majority vote of the committee.”
House Speaker Nancy Pelosi (D-Calif.), in a statement Wednesday, noted that the House’s right to obtain grand jury information has been upheld by the lower courts twice, and those rulings “should be permitted to proceed.”
“The Justice Department’s continued delay is part of a pattern of the Administration hiding the truth from the public,” she said. “The American people deserve the truth.”
The lawsuit over access to the secret grand jury evidence is one of a set of legal battles between the Democratic-led House and the Trump administration.
The Supreme Court earlier this month heard arguments about Trump’s attempts to block House committees, as well as a New York prosecutor, from accessing his personal tax and financial information. Decisions in those cases are expected this summer.
In the pipeline at the D.C. Circuit are disputes over a House subpoena for testimony from former White House counsel Donald McGahn and an effort to block the president’s spending on his signature Southern border wall.