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DOJ plans to appeal ruling over secret Mueller grand jury details to Supreme Court

Washington Examiner logo Washington Examiner 4/26/2020 Jerry Dunleavy
Robert Mueller wearing a suit and tie © Provided by Washington Examiner

The Justice Department announced its intention to appeal to the Supreme Court in an effort to block secretive grand jury materials from special counsel Robert Mueller’s report from being handed over to the Democrat-led House Judiciary Committee.

DOJ lawyers made their intentions clear in a Friday legal filing in which they asked the D.C. appeals court to stay a court order to deliver those materials to Congress by May 1 while the Trump administration lawyers ready their writ of certiorari in hopes that the highest court in the land takes up the case and sides with them. The Justice Department said the congressional committee opposed the motion.

The U.S. Court of Appeals for the D.C. Circuit ruled in a 2-1 vote in March to uphold U.S. District Court Chief Judge Beryl Howell’s October 2019 ruling that House investigators should be given access to the grand jury material redacted within and underlying Mueller’s report on Russian election interference.

The Justice Department requested a stay from the appeals court this week or, if that is denied, asked for a temporary stay to allow it time to seek a stay from the Supreme Court as it seeks to convince the justices to take up the high-profile case.

Some of the controversy stemmed from whether this year’s Senate impeachment trial constituted a “judicial proceeding." The Justice Department said it did not, while Democrats insisted it did. The courts so far have agreed with the House Judiciary Committee.

Government lawyers said Friday that “reading the term to go beyond its plain meaning raises significant separation of powers concerns by rendering key portions” of the rules governing grand jury material “inoperative or unconstitutional in application.” The lawyers additionally warned of the “potential for harassment of the Executive Branch."

The Justice Department said there was “good cause” for the mandate to be stayed and warned the agency might otherwise be required to turn over the grand jury information before the Supreme Court weighs in, “irreversibly breaching the secrecy of those materials” and “raising serious questions about whether they could ever be retrieved from Congress once in Congress’s possession.”

The Trump administration’s filing also reasoned there is no "harm to the [Judiciary] Committee from a stay” because “any impeachment inquiry appears to be dormant, and since the Court’s opinion in this case, the Committee has neither inquired about the materials nor sought to terminate the Court’s administrative stay.”

The 26-page appeals court opinion in March said, “It is the district court, not the Executive or the Department of Justice, that controls access to the grand jury materials at issue here.” The appeals court said “requests for grand jury materials” of this sort “necessarily require resolution by the courts.” Judge Judith Rogers, appointed to the bench by President Bill Clinton in 1993, wrote the March opinion and was joined by Judge Thomas Griffith, a President George W. Bush appointee in 2005. The dissenter was Judge Neomi Rao, who joined the court after an appointment from President Trump in 2019.

Howell wrote last fall, during the Ukraine-related impeachment effort, that “the need for continued secrecy is minimal and thus easily outweighed by [House Judiciary Committee's] compelling need for the material.” The judge said “tipping the scale even further toward disclosure is the public’s interest in a diligent and thorough investigation into, and in a final determination about, potentially impeachable conduct by the president described in the Mueller Report.”

Democrats initiated their effort to gain access to the Mueller grand jury information in the summer and claimed the material might “demonstrate the President’s motives for obstructing the Special Counsel’s investigation” and “also could reveal that Trump was aware of his campaign’s contacts with WikiLeaks.”

Rogers said, “Federal courts have authorized the disclosure of grand jury materials to the House for use in impeachment investigations involving two presidents and three federal judges.” The judge concluded that “Mueller prepared his Report with the expectation that Congress would review it.”

The majority opinion noted Mueller’s report was cited by Democrats in their two articles of impeachment against Trump. The first article charged Trump with abuse of power in soliciting Ukraine to interfere in the 2020 presidential election to benefit him. The second article charged the president with obstruction of Congress by using executive power to block subpoenas and witness testimony.

Mueller said his investigation “identified numerous links between the Russian government and the Trump campaign” but "did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” Months after Mueller's work was finished, DOJ Inspector General Michael Horowitz released a report showing flaws in the FBI’s Trump-Russia investigation, and newly-declassified footnotes show the FBI was aware that British ex-spy Christopher Steele’s dossier may have been compromised by Russian disinformation.

The Democrat-led House impeached Trump on Dec. 18, and the GOP-controlled Senate acquitted the president on Feb. 5.

Rao asked in her dissent: “Why is this controversy not moot?”

“A reasonable observer might wonder why we are deciding this case at this time. After all, the Committee sought these materials preliminary to an impeachment proceeding and the Senate impeachment trial has concluded,” she said in her 45-page dissent. “The majority simply turns a blind eye to these very public events.”

In a different case in which BuzzFeed and the Electronic Privacy Information Center are seeking access to the full unredacted Mueller report, District Court Judge Reggie Walton has been reviewing the entire classified version of the document to see if more should be made public. This week he scheduled a status conference between the litigants and the Justice Department to be held June 18.

When ordering the agency to hand the full report over to him, Walter said Attorney General William Barr “dubiously handled the public release” of the Mueller report.

DOJ spokeswoman Kerri Kupec pushed back, calling the court's assertions "contrary to the facts.” She said the Justice Department “stands by” the work of the DOJ officials who made the redaction decisions and defended Barr’s “efforts to provide as much transparency as possible in connection with the Special Counsel’s confidential report.”

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