WASHINGTON (CN) — Killing an appeal by the Justice Department, the D.C. Circuit opened the door Tuesday for House Democrats to scour special grand jury materials from the Mueller probe.
“Courts must take care not to second-guess the manner in which the House plans to proceed with its impeachment investigation or interfere with the House’s sole power of impeachment,” U.S. Circuit Judge Judith Rogers wrote for a divided three-judge panel.
U.S. Circuit Judge Thomas Griffith, a G.W. Bush appointee, joined the Clinton-appointed Rogers in the weighty decision.
At 45 pages, the dissent from Trump-appointed U.S. Circuit Judge Neomi Rao is nearly twice as long as the lead opinion.
While the majority said it had no reason to question whether the House Judiciary Committee requires access to the grand jury materials to carry out its constitutional duty, Rao said the House failed to show a “particularized need” for the materials as “preliminarily to” impeachment proceedings.
The ruling comes a year after Chief U.S. District Judge Beryl Howell determined that the “compelling need for the material” demonstrated by the House Judiciary Committee “easily outweighed” the need for continued grand jury secrecy.
“The reality is that DOJ and the White House have been openly stonewalling the House’s efforts to get information by subpoena,” Howell had said.
Though the Justice Department termed this an abuse of judicial discretion, the D.C. Circuit found otherwise, emphasizing Howell’s decision to first review the full and unredacted Mueller report.
Speaking to the points of Rao’s dissent, Griffith emphasized in a concurring opinion that the court typically remains on the sidelines during an impeachment.
“But, as gatekeepers of grand jury information, we cannot sit this one out,” he wrote.
House investigations of President Donald Trump remain underway this year, but Rao focused in her dissent on the president’s impeachment acquittal last month by the GOP-controlled Senate.
“The committee sought these materials preliminary to an impeachment proceeding and the Senate impeachment trial has concluded,” Rao’s dissent states. “Why is this controversy not moot?”
Griffith meanwhile backed the court’s authority. “The House isn’t seeking our help in eliciting executive-branch testimony or documents,” he wrote. “Instead, it’s seeking access to grand jury records whose disclosure the district court, by both tradition and law, controls.”
Just a week earlier, Griffith wrote the majority opinion for a different 2-1 panel that barred House Democrats from enforcing a subpoena of former White House counsel Don McGahn.
In the subpoena case, the majority did not resolve the Justice Department’s assertion that presidential advisers enjoy absolute immunity. Rogers authored a scathing dissent to Griffith’s lead opinion in the McGahn case, which the House is now calling to be reheard en banc.
As she had in her McGahn case dissent last week, Rogers relied on a Nixon-era era D.C. Circuit ruling to craft Tuesday’s lead opinion on the grand jury materials.
In a two-step judicial approval that mirrors Tuesday’s ruling, the D.C. Circuit in 1974 upheld an order to turn over grand jury materials known as the Watergate Road Map to the House.
The Justice Department objected to the release of the Mueller grand jury materials arguing it leaves the House with discretion to release the secret records. But House lawyers rebutted that the Judiciary Committee to date keeps the full Watergate Road Map hidden from public eye, agreeing to adopt similar protocols to restrict access to the Mueller records.
The D.C. Circuit concluded that “such protocols ‘insure against unnecessary and inappropriate disclosure,’ dismissing concerns about leaks as ‘speculation.’”
Rogers emphasized that House requests for access are not a foregone conclusion: Where there is not an obvious connection between grand jury materials and an impeachment investigation, the court “must not simply rubber stamp,” she wrote.
Likewise Rao’s dissent was not without concessions. She agreed that the court has limited authority to exercise power over a grand jury.
“Yet the ancient institution of the grand jury does not eviscerate the constitutional limits between the coordinate branches of the federal government,” she wrote. “While the courts and the executive branch each have a distinct relationship to the grand jury and Rule 6(e) gives both branches shared responsibility for maintaining grand jury secrecy, the grand jury context does not change the powers of the judiciary in relation to the executive branch or to Congress.”