Appeals court weighs Mueller grand jury access for Congress
Washington – Democrats in Congress are seeking access to secret grand jury testimony from special counsel Robert Mueller’s Russia investigation, arguing in court Friday that it is relevant to President Donald Trump’s impeachment and could even be a basis for additional accusations against him.
A three-judge panel that heard the argument, including a Trump appointee, appeared divided and did not immediately rule on the case. It was one of two separation-of-powers fights between Congress and the Justice Department heard Friday by Washington’s federal appeals court.
At issue is whether House Democrats can obtain grand jury testimony outlined in Mueller’s 448-page report, which examined the Trump campaign’s ties to Russia and whether the president sought to obstruct that investigation. The Justice Department appealed a judge’s order from the fall directing it to produce that material.
A Justice Department lawyer on Friday said the grand jury material bore no relevance to the impeachment inquiry, which centers on Trump’s efforts to press his Ukrainian counterpart to investigate a political rival and concerns activities that occurred after the Mueller investigation had concluded.
“The House has now adopted two articles of impeachment that have nothing to do with this case,” Mark Freeman told the court.
But Douglas Letter, the House’s general counsel, argued that the Russia material is on point, given the momentous stakes of deciding a president’s fate in impeachment proceedings.
“There’s nothing more important than determining whether the president of the United States should remain the president of the United States,” he said.
Letter said the House was seeking a “discrete” disclosure, noting that lawmakers weren’t seeking access to all grand jury testimony but only to testimony that Mueller made reference to in his report and therefore considered relevant to his investigation.
The House, he said, was not simply “just coming in (to court) and saying, ‘Impeachment, we get everything.’”
Freeman, the Justice Department lawyer, said Congress had changed its arguments in the months since a lower court judge ruled it was entitled to the grand jury material. Where lawyers for the House had once said they needed the information for an investigation into whether Trump had obstructed justice, they were now arguing it they wanted it for impeachment, he said.
He questioned the need for the information, noting that most of the information compiled in Mueller’s report was presented without any redactions.
But Judge Judith Rogers, a nominee of former President Bill Clinton, questioned that argument, saying: “We all know that single redaction can be devastating. The length and the percentage (of redactions) is not necessarily dispositive.”
Testimony taken by grand juries is traditionally treated as secret, in part to protect the privacy of people who are not charged or who are considered peripheral to a criminal investigation. In certain cases, though, courts have authorized the disclosure of the information, such as when the House Judiciary Committee was conducting its Watergate investigation in the 1970s.
Judge Neomi Rao, a Trump appointee, questioned whether courts had the authority to force one branch of government to turn over grand jury material to another branch. She appeared reluctant to rule in the House’s favor on what she described as a “political question.”
“The power to order might be different in this context when the Congress needs the materials and it’s an intrabranch dispute,” Rao said.
Letter said the courts are the proper place to resolve the dispute, noting that though Congress theoretically has authority to dispatch the Senate sergeant-at-arms to the Justice Department to collect the material and to engage in a “gun battle” if necessary, that’s not the ideal course of action.
The third judge on the panel, Thomas Griffith, an appointee of President George W. Bush, peppered both attorneys with questions about their arguments.