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House Democrats can get secret Mueller information, appeals court rules

The judges decided that the House Judiciary Committee can receive Mueller grand jury materials, along with an unredacted version of the former special counsel's report.
Image: Robert Mueller, former special counsel for the U.S. Department of Justice, speaks during a House Judiciary Committee hearing on July 24, 2019.
Robert Mueller, former special counsel for the Department of Justice, speaks during a House Judiciary Committee hearing July 24, 2019.Eric Thayer / Bloomberg via Getty Images file

A federal appeals court ruled Tuesday that House Democrats are entitled to get materials gathered by a grand jury during former special counsel Robert Mueller's investigation of the Trump campaign and Russian election meddling in 2016.

By a 2-1 vote, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia said the House Judiciary Committee can receive the materials, along with an unredacted version of the Mueller report, even though such materials are normally shielded by federal rules that protect the secrecy of grand jury proceedings.

The ruling, which can be appealed to the full D.C. Circuit or the Supreme Court, is a major victory for the power of Congress to demand investigative materials over an issue that has long divided federal courts. But it is likely to have little immediate effect.

The appeals court said the House "has repeatedly stated that if the grand jury materials reveal new evidence of impeachable offenses, the committee may recommend new articles of impeachment." But there is little interest in another around of impeachment hearings in the House or another impeachment trial in the Senate.

After the Senate acquitted President Donald Trump, Rep. Jamie Raskin, D-Md., a member of the House Judiciary Committee, said, "There's not much appetite for revving up the engines of impeachment, because the Senate is behaving like a bunch of religious cultists. Next thing you know, they'll be selling flowers at the airport."

Under federal law, materials gathered by a grand jury must remain secret, with only a few exceptions. One of them is "preliminary to or in connection with a judicial proceeding." The court upheld an October 2019 ruling by a federal judge which concluded that a Senate impeachment trial is a judicial proceeding, not a legislative one.

Tuesday's ruling said the Constitution's framers understood impeachment to be an exercise of judicial power. It said that as long ago as 1811, the courts were providing grand jury materials during congressional investigations.

The Justice Department objected to the release of the Mueller materials, but a key holding of the appeals court was that the courts, not the executive branch, control access to grand jury materials.

"Grand jury records do not become executive branch documents simply because they are housed with the Department of Justice," the decision said.

Whatever the government's interests may be in upholding general grand jury secrecy, they "do not outweigh the committee's compelling need for disclosure," it said.

In her dissent, Judge Neomi Rao, who was appointed by Trump, said the House might have had a need for the documents last fall, but she questioned whether that was still true with the impeachment process now over.

"A reasonable observer might wonder why we are deciding this case at this time," Rao said. "Why is this controversy not moot?"

The issue of congressional access to grand jury materials has long been debated. In 1974, after a federal grand jury in Washington finished an investigation of the Watergate scandal, it prepared a special report on its findings and recommended that it be forwarded to the House Judiciary Committee, which had begun impeachment proceedings against President Richard Nixon.

U.S. District Court Judge John Sirica ruled that while a grand jury's proceedings are secret, he had the authority to release the material to the House. His decision said that the normal reason for keeping grand jury proceedings secret — such as preventing the escape of someone who might be indicted or insulating the grand jury from outside influence — no longer applied once the grand jury's work was done.

Subsequent rulings have said the judicial proceedings exception to grand jury secrecy was not the central holding of Sirica's ruling, but Tuesday's appeals court decision makes it clear that the rule applies to an impeachment proceeding.

A Justice Department spokesman said the administration was studying the ruling and had no immediate comment on whether it would appeal. But an appeal by the government seems likely, in part because of the consequences of the decision on future legal battles between Congress and the White House.