Thursday, March 12, 2020

D.C. Circuit Authorizes Release of Full Mueller Report to House

The D.C. Circuit this week upheld a district court ruling that auhorized release of the full, unredacted Mueller Report to the House Judiciary Committee. The ruling, if upheld on inevitable appeal, means that the Committee'll get its hands on the full report, plus other, supporting grand jury materials from the Mueller investigation.

The ruling deals a sharp blow to the Trump Administration and DOJ. It means that the Committee can decide for itself, based on the full Mueller Report and additional grand jury materials, whether Administration witnesses lied to Congress or to the Mueller team, and the extent to which AG Barr misrepresented the full Report. It also means that the Committee can see for itself the full extent of any collaboration between the Trump campaign and Russia, and campaign and Administration efforts to conceal any collaboration or otherwise to obstruct congressional investigations.

But don't think that this means that we'll see the full Report anytime soon. First, there's the matter of the inevitable application for a stay, and appeal. Second, the court's holding hinges, in part, on the Committee's plan to protect the material from public release and to use only those portions that it needs.

The case arose when, July 26, 2019, the Committee filed an application for release of certain grand jury materials from the Mueller investigation with the federal district court. The Committee sought release of three categories of grand jury materials: (1) all portions of the Mueller Report that were redacted pursuant to the general grand-jury secrecy rule in Rule 6(e) of the Federal Rules of Criminal Procedure, (2) any portions of grand jury materials (transcripts, exhibits) that were referenced in those redactions, and (3) any other underlying grand jury material that related directly to certain individuals and events described in the Mueller Report.

The Committee sought release pursuant to the "judicial proceeding" exception, in Rule 6(e)(3)(E)(i), to the general rule of grand jury secrecy. The exception allows for release of grand jury materials in a "judicial proceeding," where the requesting party can demonstrate a particularized need for the material. After in camera review of a portion (but not all) of the requested materials, the district court held that the Senate's impeachment trial of President Trump met the "judicial proceeding" requirement, and that the Committee demonstrated a particularized need for the material. The court authorized release of the first two categories of grand jury material requested by the Committee.

(You might wonder how the Committee request for release relates to impeachment. Here's how: The Committee Report on Impeachment said that the conduct in the Articles of Impeachment was consistent with President Trump's behavior with regard to Russia and the Mueller investigation. Moreover, the Committee's impeachment investigation related to the Mueller report is ongoing, and may lead to addition articles of impeachment.)

The D.C. Circuit affirmed. The court held that the Senate's impeachment trial is, indeed, a "judicial proceeding" under Rule 6(e) (and that the Committee's investigation is part of, preliminary to, a Senate trial). It held that constitutional text and history, circuit precedent, and past practice all uniformly supported this conclusion. (On this point, "[i]t is only the President's categorical resistance and the Department's objection that are unprecedented.")

The court went on to say that the Committee demonstrated a particuularized need, because, among other things, the Committee may yet issue more articles of impeachment related to the President's behavior with regard to Russia and the Mueller investigation. 

Judge Rao dissented. She argued that the lower court actually made two moves--one to "authorize" release of the material, and the other to "order" DOJ to release it. She agreed that the court could authorize release, but she argued that it couldn't order DOJ to release the material, because the Committee lacked standing to bring a claim against the Executive Branch under the court's recent ruling in the McGahn case.

Both the court and Judge Griffith, in concurrence, wrote that the district court did no such thing. They both reminded that grand jury materials are judicial records, and that DOJ only holds them. As a result, this wasn't a dispute between the Committee and the Executive Branch. Instead, it was merely an application by the Committee to the courts, which the Executive Branch decided to oppose.

https://lawprofessors.typepad.com/conlaw/2020/03/dc-circuit-authorizes-release-of-full-mueller-report-to-house.html

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