The House of Representatives has a right to see secret grand jury material gathered in former special counsel Robert Mueller’s investigation of Russian interference in the 2016 election, a federal appeals court ruled Tuesday.
Although the ruling comes too late for the impeachment trial of President Trump, it may be used by the House Judiciary Committee investigation of Trump’s alleged obstruction of justice for blocking witnesses from appearing before Congress.
The 2-1 decision by a panel of the DC Court of Appeals concluded, “In short, 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 committee has established that it cannot ‘fairly and diligently’ make a final determination about the conduct described in both volumes of the Mueller Report ‘without the grand jury material referenced’ therein,” wrote Judge Judith Rogers. Judge Thomas Griffith joined her.
In addition, the majority cited an earlier precedent that grand jury minutes and transcripts are not the property of the government’s attorneys, agents or investigators. Instead those documents are records of the court.
“Grand jury records do not become Executive Branch documents simply because they are housed in the Department of Justice,” Rogers wrote. The courts control access, not DOJ. Since the rule was enacted that allows courts to disclose grand jury materials to the House for use in impeachment, they have been released five times, two presidential impeachments (Nixon, Clinton) and three judge impeachments (Alcee Hastings, Walter Nixon and Thomas Porteous.)
During the Mueller investigation, the grand jury issued 2,800 subpoenas and heard 80 witnesses. In addition, Mueller’s team interviewed roughly 500 witnesses under oath, including members of the Trump administration.
The majority found the House committee proposed a “focused and staged disclosure” for disclosure of materials.
In dissent, Judge Neomi Rao argued that the House lacks standing to seek the grand jury materials.
The trial judge also found the committee showed a compelling need for the material to “investigate fully” and “to reach a final determination about conduct by the President described in the Mueller report.”
The panel also clarified that an impeachment is essentially a judicial proceeding.
As for the DOJ argument that disclosure would risk “public ridicule” of people who were not indicted. The could found that so much was known from the public portions of the Mueller report and the hearings that there is decreased risk as a result of widespread public knowledge of the details of the report.
Case: In re: Application of the Committee on the Judiciary v. US DOJ, No. 19-5288
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