Two Republican-appointed judges raised the possibility Monday that the courts should simply butt out of a dispute between Congress and the Justice Department over Robert Mueller’s underlying evidence.
Democratic lawmakers working on a possible impeachment of President Donald Trump have been seeking access to the secret grand jury information the special counsel’s team relied on during its 22-month probe into Russian election interference and whether the Trump campaign conspired with the Kremlin.
But DOJ, acting at the direction of Attorney General Bill Barr, has refused to hand over the grand jury materials and underlying testimony. Grand jury information is typically kept private, but courts can authorize disclosures for a variety of reasons.
As a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit wrestled with the issue Monday morning, Trump-appointed Judge Neomi Rao pointed out that in a 1993 case involving impeachment of a federal judge, the Supreme Court declined to wade into the mechanics of the impeachment process. She suggested that the courts have no business resolving the House’s request for the blacked-out portions of the Mueller report.
“Would that impermissibly involve this court in an impeachment proceeding?” Rao asked during a 90-minute hearing in the D.C. Circuit’s ceremonial sixth-floor courtroom.
Justice Department attorney Mark Freeman noted that while the Trump administration is opposing the House’s request for the grand jury-related information, the administration is not arguing the court has no jurisdiction to even consider the issue.
“We’re not advancing that argument,” Freeman said.
Judge Thomas Griffith, a George W. Bush appointee, quickly chimed in to back up his colleague after she first mentioned that the courts might not have jurisdiction at all.
“I think it’s an interesting question,” said Griffith, who served for a time two decades ago as the legal counsel for the Senate.
The suggestion by the two GOP-appointed judges that the courts should step aside in impeachment-related legal battles could have significance far beyond the smattering of deletions in the Mueller report made to preserve grand jury secrecy.
About half a dozen other court cases are pending involving subpoenas or other demands for information that the Trump administration or the president personally are withholding, including a House Judiciary Committee lawsuit seeking to enforce a subpoena for testimony from former Trump White House Counsel Don McGahn.
Late Monday, the three-judge panel that heard the case in the morning issued an order scheduling oral arguments Jan. 3 on the merits of the Mueller grand jury fight. Briefs are due from both sides up until nearly Christmas, and the judges said that their decision issued last month placing an administrative stay halting the release of the special counsel-collected materials remains until they say otherwise.
Rao’s suggestion seemed aligned with arguments from the administration, Barr and some conservative legal scholars, who have argued in other cases that the courts should not attempt to mediate any fights between the White House and Congress.
Critics have countered that denying Congress recourse in the courts would give the White House the upper hand to hide information needed for an impeachment investigation or other legislative inquiries. And other legal scholars have noted that Congress could still put pressure on the executive branch by withholding funding or threatening impeachment over the withholding, a specter House leaders have already raised in the current impeachment battle.
Rao returned to the same theme later in the argument, by suggesting that the two sides could negotiate over access, implying that judges were not needed.
“Isn’t this sort of accommodation that takes place without the intervention of a federal court?” she asked.
House counsel Doug Letter said the House is open to some limits, like having staff review the information at the court. But he said the Justice Department has foreclosed that by arguing that it is illegal for the House to access the information and that a letter White House counsel Pat Cipollone sent last month directed a flat refusal to cooperate with ongoing impeachment inquiries.
“There is no accommodation,” Letter said.
Letter also pushed back on Rao’s suggestion that the House’s demand for grand jury material delves into the nitty-gritty of the impeachment process.
“If you said any application of impeachment is a political question, we would have a major constitutional problem here,” he said.
Last month, Chief U.S. District Court Judge Beryl Howell granted the House’s request for access to the grand jury secrets in the Mueller report.
Officially, the three-judge appeals court panel’s session Monday was devoted to considering whether to put Howell’s ruling on hold while the appeals court considers the legal merits of the dispute.
However, the arguments Monday seemed to go to the heart of the legal fight and appeared to contain broad hints of the judges views on those issues.
Rao seemed inclined to grant the stay, while a Democratic appointee on the panel, Judge Judith Rogers, sounded prepared to side with the House’s right to access the records.
“If it’s a secret and they don’t know it, how can they say more than they did,” Rogers, an appointee of President Bill Clinton, asked the DOJ attorney who argued the Democrats were essentially on a fishing expedition for incriminating material against the president.
Letter argued House Democrats are in a race against the clock for access to the Mueller's materials, which they have been suggesting could help them build out an article of impeachment against Trump premised on the president potentially misleading or even lying to the special counsel in written answers he submitted last November to the Russia investigator.
“This is something that’s unbelievably serious and it’s happening right now, very fast,” Letter said. He cited a section of the Mueller report that contains significant redactions but suggests inconsistencies between what the president told Mueller and what former Trump 2016 campaign chairman Paul Manafort told investigators.
“The Manafort situation shows so clearly, very sadly, that the president might have provided untruthful answers,” Letter said.
The Justice Department is also arguing in the case that the House is simply not entitled to the grand jury information because federal rules contain no explicit exception for impeachment. But courts have previously permitted such disclosures, ruling that impeachment qualifies for an exemption that allows releases for a “judicial proceeding.”
Griffith noted that the DOJ argument seems to contradict a Watergate-era ruling that blessed turning over grand jury materials to the House on those grounds.
“It would be extraordinary for us” to defy that, Griffith said, noting that three-judge panels are required to adhere to the appeals court’s prior rulings. “I don’t think that would last very long.”
Griffith could emerge as the swing vote as the panel makes its decision. His questions and statements didn’t evince an obvious view one way or another. He did, however, suggest House lawyers could work with Howell, the judge who ruled in the House's favor, to argue their need for each individual witnesses’ testimony.
At that point, Rao stepped in, turning back towards her initial suggestion that judges were not needed.
“Isn’t this sort of accommodation that takes place without the intervention of a federal court?” Rao said.
Letter replied that the House is open to some limits, like having staff review the desired information at the court. But he also said the Justice Department has foreclosed that route by categorically stating that it is illegal for the House to access the information. He also reminded the court of a letter White House Counsel Pat Cipollone sent last month that outlined a flat refusal to cooperate with ongoing impeachment inquiries.
“There is no accommodation,” Letter said.
Rao’s suggestion Monday echoes comments Barr made Friday in a provocative speech to the conservative Federalist Society in Washington, D.C.
“When the judiciary purports to pronounce a conclusive resolution to constitutional disputes between the other two branches, it does not act as a co-equal," he said.
Rao has previously sided with Trump in his other ongoing legal fights. Just last month, Rao was the sole dissenter on a three-judge panel that ruled one of Trump's accounting firm must hand over tax return documents.
Whatever the D.C. Circuit judges do, the battle seemed destined for the Supreme Court, if the justices agree to hear the case.
Article originally published on POLITICO Magazine
