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Supreme Court will hear arguments over Mueller’s secret evidence, a delay for House Democrats investigating President Trump

The Washington Post logo The Washington Post 7/2/2020 Robert Barnes
Robert Mueller wearing a suit and tie: Robert S. Mueller III, the former special counsel appointed to investigate Russia’s interference in the 2016 election, testifies before the House Judiciary Committee in July. © Salwan Georges/The Washington Post Robert S. Mueller III, the former special counsel appointed to investigate Russia’s interference in the 2016 election, testifies before the House Judiciary Committee in July.

The Supreme Court on Thursday dealt a significant blow to House Democrats’ efforts to have access to secret grand jury material from Robert S. Mueller III’s investigation of Russian interference in the 2016 election, saying it would decide next term whether Congress is authorized to see the material. 

The decision to hear the case next fall means the House Judiciary Committee cannot have access to the material before the election. A lower court ruled this spring that the committee was entitled to see the previously withheld material from Mueller’s probe, which also investigated whether President Trump obstructed the special counsel’s work.

It is unlikely there could be a Supreme Court decision even before the end of the current congressional term in January. 

Solicitor General Noel Francisco had told the Supreme Court it should decide for itself the “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 need for the information, Francisco wrote in a brief to the court.

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“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 last 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.

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.

The secret sections of the special counsel’s report the House wants to access are separate from the material the Justice Department recently released detailing some of the evidence aired at the trial of Trump associate Roger Stone, who was convicted of lying to Congress. 

In its 2-to-1 opinion, the D.C. Circuit said the House was legally engaged in the kind of judicial process that exempts Congress from secrecy rules typically shielding grand jury materials.

It 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 said the House’s inquiry was not a judicial proceeding that merits a grand jury exception.

“Treating a Senate impeachment trial — a proceeding before elected legislators — as a ‘judicial proceeding’ departs from that ordinary meaning,” he told the court.

The case is Department of Justice v. House Committee on the Judiciary.

Ann E. Marimow contributed to this report

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