House legal fight for grand jury materials lands at Supreme Court

The Justice Department must turn over the materials on Monday unless the justices intervene

Former special counsel Robert S. Mueller III testifies before the House Intelligence Committee on July 24, 2019. (Tom Williams/CQ Roll Call file photo)
Former special counsel Robert S. Mueller III testifies before the House Intelligence Committee on July 24, 2019. (Tom Williams/CQ Roll Call file photo)
Posted May 7, 2020 at 2:48pm

The Trump administration asked the Supreme Court on Thursday to step into the legal fight over the House Judiciary Committee’s request to see the grand jury materials from former special counsel Robert S. Mueller III’s probe of Russian interference in the 2016 presidential election.

Without an intervention from the justices, the Justice Department would have to turn over the materials on Monday under a court order from the federal appeals court in Washington, the Justice Department wrote in an application to the Supreme Court.

The Judiciary Committee has not opposed an administrative stay of seven days from Monday while the Supreme Court considers the request, the DOJ told the justices. The Justice Department plans later to file an appeal of the decision from the U.S. Court of Appeals for the District of Columbia Circuit.

The Justice Department wrote that if the Supreme Court does not pause the order while the government appeals the D.C. Circuit ruling, it will “force the government to turn over the grand-jury materials — thereby lifting their secrecy and rendering this dispute largely academic.”

A three-judge panel of the D.C. Circuit found, in a 2-1 ruling on March 10, that the House’s impeachment of President Donald Trump counted as a “judicial proceeding,” which qualifies the committee for an exemption to rules that typically keep grand jury information secret.

And the D.C. Circuit found that the Judiciary Committee showed a need for specific parts of the grand jury materials, in part because of how Mueller’s 22-month investigation also looked at Trump’s potentially criminal obstruction of justice actions to interfere with the investigation.

The Justice Department wrote Thursday that at least four justices, the number needed for the Supreme Court to agree to hear an appeal, are likely to conclude that they should review whether “judicial proceeding” includes a Senate impeachment trial.

And the Justice Department wrote that the lower court interpretation contravenes the ordinary meaning of “judicial proceeding” and “would create serious separation-of-powers concerns” with ordinary application of other provisions to impeachment proceedings.

The Justice Department also pointed out that courts have put conditions on the disclosure of grand jury material to protect it from becoming public — but that might not matter if it has to turn over the information to the Judiciary Committee before the Supreme Court decides whether the D.C. Circuit ruling was correct.

“A federal court is likely powerless, however, to impose such conditions on Members of Congress — much less to enforce them by contempt,” the Justice Department wrote.

The House first requested the grand jury material from the Justice Department more than a year ago.

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