Sun Sentinel Palm Beach Edition
House panel to get testimony in Mueller probe, court rules
WASHINGTON — The Justice Department must give Congress secret grand jury testimony from special counsel Robert Mueller’s Russia investigation, a federal appeals court ruled Tuesday, giving the House a significant win in a separation-of-powers clash with the Trump administration.
The three-judge panel said in a 2-1 opinion that the House Judiciary Committee’s need for the material in its investigations of President Donald Trump outweighed the Justice Department’s interests in keeping the testimony secret. The opinion authorizes access to information that Democrats have sought since the conclusion of Mueller’s investigation, giving lawmakers previously-undisclosed details from the two-year Russia probe.
Writing for the majority, Judge Judith Rogers said that because Mueller himself “stopped short” of reaching conclusions about Trump’s conduct to avoid stepping on the House’s impeachment power, the committee had established that it could not make a final determination about Trump’s conduct without access to the underlying grand jury material.
“The Committee’s request for the grand jury materials in the Mueller Report is directly linked to its need to evaluate the conclusions reached and not reached by the Special Counsel,” wrote Rogers, a Bill Clinton appointee. Judge Thomas Griffith issued a separate concurring opinion.
Judge Neomi Rao, a Trump appointee, dissented, suggesting that the need for the testimony could have waned after Trump’s acquittal at a Senate impeachment trial last month.
“After all, the Committee sought these materials preliminary to an impeachment proceeding and the Senate impeachment trial has concluded. Why is this controversy not moot?” Rao wrote.
The ruling softens the blow of a loss the House endured two weeks ago when judges on the same court said they would not force former White House counsel Don McGahn to testify before Congress. The split decisions leave neither the administration nor Congress with a clear upper hand in an ongoing inter-branch dispute.
The ruling is a major win for Democrats who have fought the Justice Department for nearly a year, but it’s unclear what the House will actually do with the material. Lawyers for the Democrats have said the grand jury material could potentially be used for additional articles of impeachment, though the Senate impeachment trial over the president’s interactions with Ukraine ended weeks ago in an acquittal.
The Trump administration can ask the full appeals court to rehear the case, and can appeal to the U.S. Supreme Court.
The case is one of several disputes between the Trump administration and Congress that courts have grappled with in recent months.
The two sides had been at odds on the question of whether McGahn could be forced to testify about Trump’s behavior during the Russia investigation. The appeals court ruled in a recent 2-1 decision that judges had no role to play in that dispute and dismissed the case.
Mueller issued a 448page report last April that detailed multiple interactions between the 2016 Trump campaign and Russia and that examined several episodes involving the president for potential obstruction of justice. Mueller said his team did not find sufficient evidence to establish a criminal conspiracy between the campaign and the Kremlin to tip the election, though pointedly noted that he could exonerate the president for obstruction.
Portions of the report were blacked out, including grand jury testimony and material that Mueller said could harm ongoing investigations or infringe on the privacy of third parties.
Grand jury testimony is typically treated as secret, in part to protect the privacy of people who are not charged or are considered peripheral to a criminal investigation. But several exceptions allow for the material to be turned over, including if it is in connection with a judicial proceeding.