Appeals Court Rules DOJ Must Give Mueller Grand Jury Materials to Congress

By Harper Neidig, The Hill

10 March 20

 

federal appeals court in Washington ruled on Tuesday that the Department of Justice (DOJ) must hand over grand jury materials from former special counsel Robert Mueller's investigation to Congress.

A three-judge panel on the D.C. Circuit Court of Appeals upheld a federal judge's decision that the House's impeachment inquiry justified its request for the sealed documents.

"In short, it is the district court, not the Executive or the Department, that controls access to the grand jury materials at issue here," Judge Judith Rogers wrote in an opinion for the panel's 2-1 majority. "The Department has objected to disclosure of the redacted grand jury materials, but the Department has no interest in objecting to the release of these materials outside of the general purposes and policies of grand jury secrecy, which as discussed, do not outweigh the Committee’s compelling need for disclosure."

"Special Counsel Mueller prepared his Report with the expectation that Congress would review it," Rogers added.

Judge Thomas Griffith, who was appointed by former President George W. Bush, concurred with Rogers, a Clinton appointee. The lone dissenter, Judge Neomi Rao, was appointed by President Trump.

The decision can be appealed. A DOJ spokeswoman did not immediately respond when asked for comment on the decision.

Rao wrote in a dissent that Congress lacks standing to seek court orders for documents held by the executive branch and that the panel should have ruled that the House no longer has a need for the materials that justifies an exemption to grand jury secrecy laws.

"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. Why is this controversy not moot?"

The Democratic-led House Judiciary Committee sought access to the secret records last July in an effort to continue Mueller's investigation into Russian interference in the 2016 election.

The panel later argued in court that its impeachment inquiry qualified as a judicial proceeding, meaning its request qualified as an exception to iron-clad grand jury secrecy laws.

While the case has outlasted the impeachment inquiry and trial, House Democrats have not let up in their court battles for records from Trump and his administration.

They suffered a loss late last month when another D.C. Circuit panel, led by Griffith, ruled that they could not sue to enforce a subpoena for testimony from former White House counsel Don McGahn.

Griffith wrote for the majority that the courts cannot resolve conflicts between government branches, effectively rendering congressional subpoenas of the administration legally unenforceable.

Griffith, who announced plans to retire last week, wrote in a concurring opinion on Tuesday that the grand jury case is distinct from the McGahn case.

"Unlike McGahn, this case does not involve a suit between the political branches over executive-branch documents or testimony," he wrote. "Instead, it involves an application for access to records of the grand jury, whose disclosure the district court has traditionally controlled."

The House has asked the full circuit court to rehear the McGahn case.