Solicitor General Noel Francisco told the Supreme Court on Thursday that if it does not put the order on hold, the government will have to disclose those materials Monday, “which would irrevocably lift their secrecy and possibly frustrate the government’s ability to seek further review.”
He said lawyers for the House had agreed to a one-week extension while the court considered the Justice Department’s request.
The House Judiciary Committee went to court in July before the formal start of its impeachment proceedings involving President Trump’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.
Although Trump was acquitted by the Senate in February, House Democrats have told the D.C. Circuit that their investigation into possible misconduct by the president is ongoing, and that the grand jury material will inform its determination of whether Trump obstructed Mueller’s investigation and whether to recommend new articles of impeachment against the president.
“The current pandemic notwithstanding, the Committee’s investigation is not ‘dormant.’ The Committee continues to exercise its investigative and oversight responsibilities; its staff are ready and able to review the requested grand jury materials as soon as they are provided by DOJ; and the Committee remains able to convene formal hearings to further its investigation,” House Democrats told the D.C. Circuit in a recent filing.
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,” wrote Rogers.
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.”
Francisco said that was one of the problems with the circuit court’s decision. He said the Supreme Court needed to weigh in on a case with substantial constitutional questions and that neither it nor another appeals court has directly addressed whether a “judicial proceeding” includes a Senate impeachment.