House Can See Mueller’s Secret Grand Jury Evidence, Appeals Court Rules - The New York Times

WASHINGTON — The House has a right to see secret grand-jury evidence gathered in the Russia investigation, an appeals court ruled on Tuesday in a victory for Congress’s power to gather information for an impeachment inquiry.

In a 2-to-1 decision, a panel on the United States Court of Appeals for the District of Columbia Circuit upheld a lower-court ruling that the House had a right to gain access to the information, which was gathered by the special counsel, Robert S. Mueller III, using a grand jury and blacked out in the report on his investigation released last year. The Trump administration had appealed that ruling.

Usually, Congress has no right to view grand jury evidence. But in 1974, the courts permitted lawmakers to see such materials as they weighed whether to impeach President Richard M. Nixon. Last summer, as the House Judiciary Committee weighed whether to impeach Mr. Trump, the panel sought a judicial order to see certain Mueller grand jury materials, too.

Judge Judith Rogers, an appointee of President Bill Clinton, and Judge Thomas Griffith, an appointee of President George W. Bush, sided with Congress. They ruled that lawmakers’ need for the information outweighed the general interest in keeping grand jury evidence secret, and that an impeachment inquiry fit within an exception to the secrecy rules for judicial proceedings.

“The committee states that it needs the unredacted material to review these findings and make its own independent determination about the president’s conduct,” Judge Rogers wrote, adding: “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.”

Speaker Nancy Pelosi celebrated the ruling, calling it “an unequivocal rejection of the president’s insistence that he is above the law and his blanket refusal to cooperate with congressional requests for information.”

Kerri Kupec, a Justice Department spokeswoman, said the administration was reviewing the decision but provided no other comment.

The House had requested to see the blacked-out portions of the Mueller report, along with the underlying transcripts and other evidence, about several topics including additional information about a June 2016 meeting between Russians and Trump campaign officials at Trump Tower and Mr. Trump’s knowledge of outreach to WikiLeaks by his aides.

A lawyer for House Democrats had argued to the court that the full evidentiary record assembled by Mr. Mueller is important, for example, in part because of suspicions that Mr. Trump may have lied under oath in his written answers to Mr. Mueller when he denied knowing about outreach to WikiLeaks regarding the contents of the emails that Russian hackers had stolen from Democrats, and the organization’s plans to publish them.

The appeals panel’s decision came less than two weeks after a different three-judge panel on the appeals court ruled, 2 to 1, that Congress had no right to sue to enforce a subpoena against an executive branch official who defied it — in that case, Donald F. McGahn II, the former White House counsel and a key witness to several efforts by Mr. Trump to obstruct the Russia investigation that were detailed in the Mueller report.

Judge Rogers and Judge Griffith were also part of the panel that heard the McGahn subpoena dispute but disagreed with each other. Over Judge Rogers’s dissent, Judge Griffith and another judge sided with the Trump administration in rejecting the House’s right to sue to enforce a subpoena for executive-branch information.

In the Mueller case, Judge Neomi Rao, a former administration official whom President Trump appointed to the appeals court last year, filed a dissenting opinion.

She argued that the grand-jury information dispute should turn out the same way as the McGahn subpoena case had turned out — with a decision that the House lacked standing to sue, delivering a victory for Mr. Trump’s secrecy powers — in part because the grand-jury records are currently in the control of the executive brach.

But in a concurring opinion, Judge Griffith said that the grand jury information was different because courts traditionally oversee grand juries and so the executive branch does not own the records, even if it is housing them. He also noted that there is a tradition of grand jury evidence being turned over to Congress for the impeachment of various officials.

“Federal courts, including courts in our own circuit, have approved the disclosure of grand jury materials to the House of Representatives in seven prior impeachment proceedings,” he wrote. “Congressional applications for access to grand jury materials have thus traditionally been thought capable of (and indeed to require) judicial resolution.”

Judge Rogers said that the files remained legally subject to the control of the judicial branch, writing: “Grand jury records do not become executive branch documents simply because they are housed with the Department of Justice.”

Judge Rao separately said that she agreed in general that a court could provide grand-jury records still in the judicial branch’s custody — as the Mueller investigation files no longer are — for an impeachment inquiry. However, she said, since the House had already impeached Mr. Trump over his dealings with Ukraine and the Senate has acquitted him, the district court should have been directed to conduct a new hearing into whether the House still needed the information to weigh whether to impeach Mr. Trump on Mueller-related matters.

But Judge Rogers suggested that even though the Ukraine impeachment is now over, the House could still choose to impeach Mr. Trump over something else.

“The committee’s particularized need for the grand jury materials remains unchanged,” she wrote. “The committee has repeatedly stated that if the grand jury materials reveal new evidence of impeachable offenses, the committee may recommend new articles of impeachment.”

The court’s ruling in the McGahn subpoena case is widely seen as a major blow to Congress’s ability to conduct oversight of the executive branch. Congress lacks a realistic power to arrest and detain recalcitrant executive branch officials on its own, and administrations of both parties have declined to prosecute officials who defy subpoenas on a president’s orders.

The House has asked the full appeals court to rehear the subpoena case. The Trump administration could do likewise in the grand jury case.

This month, the Administrative Office for the Courts disclosed that Judge Griffith, 65, has decided to retire after 15 years on the bench in September — two months before the election.

The timing of his departure will create another vacancy on the powerful District of Columbia Circuit for Mr. Trump and the Republican Senate to fill with a younger judge like Ms. Rao, who is 46.

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