WASHINGTON (CN) — The Justice Department on Thursday asked the Supreme Court to shield grand jury materials from the Mueller probe, just four days before Congress was set to get the files.
Solicitor General Noel Francisco filed a 37-page application asking the justices to stay a D.C. Circuit ruling from March that allowed for the redacted documents to be made available by May 11.
U.S. Circuit Judge Judith Rogers, a Bill Clinton appointee, wrote for the D.C. Circuit that it was not the duty of courts to scrutinize impeachment investigations. The grand jury records stem from former special counsel Robert Mueller’s investigation into Russian interference in the 2016 election.
But in Thursday’s filing, Francisco argued grand juries have a historical precedent of secrecy in order to have willing participants in their investigations. He also took issue with the D.C. Circuit’s interpretation of Congress’ need to view materials from the investigation, saying that a so-called particularized-need analysis should focus on judicial proceedings, not political ones.
“Yet in the case of a request for such information by a House of Congress or one of its committees in connection with an impeachment trial, that standard would require courts to scrutinize specific legal theories of impeachment and second-guess a coordinate branch’s assessment of materiality, in likely violation of the House’s ‘sole power of Impeachment’ and the Senate’s ‘sole Power to try all Impeachments,’” Francisco wrote.
He continued, “Recognizing that problem, the court of appeals fashioned a lower impeachment-specific standard that requires a House of Congress merely to show that the requested materials may be ‘relevant’ to impeachment… in contravention of this court’s precedents rejecting a ‘relevance’ standard.”
The stay application also states that the Supreme Court’s decision in United States v. Baggot – in which the justices held that an IRS investigation into a civil tax liability did not constitute a judicial proceeding – established that such proceedings need to include “identifiable litigation.”
“The term ‘judicial proceeding,’ … means a proceeding taking place before a court,” the filing states. “That is – and always has been – the ordinary meaning of the term.”
House General Counsel Douglas Letter argued before the D.C. Circuit in January that the release of the redacted grand jury materials could impact the chamber’s impeachment case against President Donald Trump. He said they could lead to more articles of impeachment and would help the House Judiciary Committee evaluate if witnesses lied to Mueller’s team.
But the Justice Department pushed back Thursday, saying there had been no indication that the House immediately needed the documents. Even if a Senate impeachment trial were considered a judicial proceeding, no proceeding would be “sufficiently imminent” to unseal protected information, according to the stay application.
“Indeed, since the district court proceedings here, the House has impeached the president, the Senate has acquitted him, and other than asserting that the House Judiciary Committee ‘remains able’ to hold hearings and continue its impeachment investigation… respondent has provided no indication that the House urgently needs these materials for any ongoing impeachment investigation,” Francisco wrote.
The Justice Department’s arguments follow the dissenting opinion of D.C. Circuit Judge Neomi Rao, a Trump appointee, who said in light of the House’s approval of two impeachment articles against the president, Congress no longer demonstrated a specific need for the grand jury records. She said the case should have been remanded to the district court to determine if there is still a need to release the documents
“The majority relies on assertions made in briefs filed by the committee before the impeachment trial,” Rao wrote. “This generalized interest standing alone does not speak to the fact-bound inquiry regarding the ongoing purpose and need for the materials.”
The Justice Department did not return a request for comment Thursday.
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