Showdown Over Special Counsel Records Hits DC Circuit

WASHINGTON (CN) — A lawyer for the House of Representatives told a D.C. Circuit panel Friday the gravity of a Senate trial to determine whether President Donald Trump should be removed from office more than supports granting access to grand jury materials from the special counsel’s probe.

“This is it. There is nothing more important than determining whether the president of the United States should remain the president of the United States,” House General Counsel Douglas Letter told a three-judge panel of the Washington, D.C.-based appeals court.

Special counsel Robert Mueller speaks at the Department of Justice on May 29, 2019. (AP Photo/Carolyn Kaster)

The House Judiciary Committee filed an application in July asking a federal judge to release to it grand jury materials from former special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election and possible obstruction by Trump.

In October, U.S. District Judge Beryl Howell ordered the information released to the committee over objections from the Justice Department, saying Democrats had shown an adequate need for the materials.

House Democrats have said in court filings they may use the materials redacted from the Mueller report at Trump’s Senate trial or to support additional articles of impeachment against him. Letter on Friday told the court it is “absolutely” possible the House considers additional articles against Trump depending on what is in Mueller’s materials.

Letter said while the articles of impeachment the House approved last month focus on Trump’s actions in Ukraine, the Mueller report does play a background role.

He noted the report makes mention of a conspiracy theory Trump has pushed that it was Ukraine, rather than Russia, that interfered in the 2016 presidential election and said information supporting the obstruction section of the report could shed light on Trump’s motives for not complying with congressional investigations as well.

Separately, Letter said the grand jury information could help the committee evaluate if witnesses lied to Mueller’s team and whether they also lied to Congress at some point.

In urging the court to overturn Howell’s order and keep the information out of the Judiciary Committee’s hands, Justice Department attorney Mark Freeman said the House should not be able to trigger a rule allowing for the release of grand jury materials, which are normally kept secret, simply by invoking a potential future impeachment.

“It can’t be that 6(e) is a discovery rule for impeachment,” Freeman said, referring to the rule.

Freeman said Howell, a Barack Obama appointee, had gone well beyond her authority in ordering the information released. He said contrary to the stated exceptions to grand jury secrecy, a Senate trial is not a judicial proceeding.

He also argued that because the articles of impeachment approved last month make no explicit mention of the Mueller report’s findings, the House has not pointed to a particularized need to see the information.

But U.S. Circuit Judge Thomas Griffith, a George W. Bush appointee, wondered whether the fact that the House is considering the grave topic of impeachment should change how a judge evaluates of the committee’s need for the information.

“Does that standard change when we’re in impeachment?” Griffith asked.

U.S. Circuit Judge Judith Rogers, a Bill Clinton appointee, also pushed back on Freeman’s note that a relatively small share of the Mueller report is redacted, saying any blacked-out box could be hiding potentially significant information.

“We all know that a single sentence can be devastating,” Rogers said.

Letter was at times almost exasperated at the Justice Department’s efforts to fight the release of the grand jury information. He noted that in prior cases, the agency did not fight to keep the materials hidden and argued there is little plausible justification for keeping them secret given the clear public interest the information could serve.

U.S. Circuit Judge Neomi Rao, a Trump appointee, gave Letter the most significant pushback during the hearing. She wondered whether Howell had the authority to compel, rather than simply authorize, the release of the grand jury information.

She appeared concerned about courts stepping into the political squabble of impeachment and suggested Howell could authorize the release of the information, leaving the House to use subpoenas and political mechanisms if the Justice Department refused to turn it over.

Letter acknowledged the House would have political avenues to explore if the Justice Department did not turn over the information after being authorized to do so, including sending the House sergeant at arms down Pennsylvania Avenue to hunker down in a “gun battle” with Attorney General William Barr. But he said there is a good reason to seek to avoid that outcome.

The arguments come on the same day that the Senate reconvened after a holiday recess, with plans for Trump’s impeachment trial still uncertain. The House has yet to name its mangers to present the case before the Senate, as Speaker Nancy Pelosi insists she needs to see what a Senate trial would look like before sending the articles of impeachment to the Republican-controlled chamber.

Griffith made playful note of the odd state of limbo gripping Washington when Letter was at the podium and mentioned the trial.

“And who are the House managers?” the judge asked, to laughter in the crowded courtroom.

Letter stepped towards one side of the podium and leaned towards Griffith.

“Come here, I’ll whisper it to you,” the attorney quipped.

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