Judiciary Committee Presses Supreme Court for Release of Mueller Grand Jury Material

May 19, 2020 by Dan McCue
Special counsel Robert Mueller makes a statement about the investigation into Russian interference in the 2016 election at the Justice Department on May 29, 2019, in Washington, D.C. Mueller's planned testimony to Congress could be delayed a week. (Olivier Douliery/Abaca Press/TNS)

WASHINGTON – Both Congress and the American public will “suffer grave and irreparable injury” if there continues to be a delay in the release of grand jury testimony from the Robert Mueller investigation, lawyers for the House Judiciary Committee said in court papers on Monday.

The new filing in the Supreme Court came in response to a Justice Department request that the high court set aside orders that Congress receive secret grand jury evidence from the special counsel’s investigation of Russian interference in the 2016 election.

In March, the U.S. Court of Appeals for the D.C. Circuit upheld a lower court ruling that Congress could obtain grand jury materials in connection with last winter’s impeachment proceedings.

The committee wants to see portions of the Mueller report that had been redacted, along with grand jury transcripts and other materials that have been kept secret.

The Justice Department has fought their release ever since, telling the justices last week that the decisions by the lower courts created “serious separation-of-powers concerns.

Chief Justice John Roberts temporarily blocked the release of the materials, and the DOJ has asked the Supreme Court to take up the case and set aside the lower courts’ rulings.

The Justice Department’s position is that the D.C. Circuit relied on an exception to the general rule of grand jury secrecy that allows courts to authorize disclosure of grand jury materials in connection with a judicial proceeding.

At the time the question was before the appeals court, that proceeding was the impeachment trial of the president.

U.S. Solicitor General Noel Francisco has indicated the government plans to petition the Supreme Court for a review of that conclusion. The government is expected to argue an impeachment trial in the Senate is not a judicial proceeding for the purposes of an exception to grand-jury secrecy under the Federal Rule of Criminal Procedure.

It also contends the Judiciary Committee has not identified any urgent need to receive the materials, particularly since the impeachment trial has ended.

Had Chief Justice Roberts not intervened, the Justice Department would have had to disclose the materials last Monday, pre-empting the government’s ability to seek further review of the case.

In Monday’s filing, Douglas Letter, counsel of record for the Judiciary Committee, said the Justice Department failed to meet the standard for a stay, and that it should therefore be denied.

Further, it said, “At bottom, DOJ has failed to demonstrate that this Court’s review would be warranted here.”

Douglas and his team of attorneys also argue that there is simply no basis for a review of the lower court rulings by the justices since there is no conflict with any decision of the high court and no split among the circuits on the matter.

“The sole question at issue likely will arise only rarely,” they wrote. “In any event, the decision … was plainly correct.”

The attorneys go on to argue the material to be disclosed does not belong to the Justice Department, and the grand jury investigation the material arose from has completed its work.

“In addition, the Committee has adopted procedures — which both the district court and the court of appeals found sufficient — to protect the confidentiality of the material. And, tellingly, DOJ makes no argument that a stay of disclosure to the Committee is necessary to protect ongoing criminal investigations,” the filing said.

If the Justice Department’s request for a prolonged stay were granted, it would not have to file a petition for the case to be heard by the Supreme Court until August 2020.

“Therefore this Court likely would not determine whether to grant or deny that petition until at least October 2020. This substantial delay will seriously endanger the Committee’s ability to complete its impeachment investigation during the current Congress — which ends not long thereafter on January 3, 2021,” the filing said. 

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