Appeals court weighs Mueller grand jury access for Congress

Democrats in Congress are seeking access to secret grand jury testimony from special counsel Robert Mueller’s Russia investigation, arguing in court Friday that it is relevant to President Donald Trump’s impeachment and could even be a basis for additional accusations against him.

A three-judge panel that heard the argument, including a Trump appointee, appeared divided and did not immediately rule on the case. It was one of two separation-of-powers fights between Congress and the Justice Department argued Friday before judges on Washington’s federal appeals court.

At issue is whether House Democrats can obtain grand jury testimony outlined in Mueller’s 448-page report, which examined the Trump campaign’s ties to Russia and whether the president sought to obstruct that investigation. The Justice Department appealed a judge’s order from the fall directing it to produce that material.

A Justice Department lawyer argued Friday that the grand jury material bore no relevance to the impeachment inquiry, which centers on Trump’s efforts to press his Ukrainian counterpart to investigate a political rival and concerns activities that occurred after the Mueller investigation had concluded.

“The House has now adopted two articles of impeachment that have nothing to do with this case,” Mark Freeman told the court.

But Douglas Letter, the House’s general counsel, said the Russia material is on point, given the momentous stakes of deciding a president’s fate in impeachment proceedings.

“There’s nothing more important than determining whether the president of the United States should remain the president of the United States,” he said.

Letter said the House was seeking a “discrete” disclosure, noting lawmakers weren’t seeking access to all grand jury testimony but only to testimony Mueller made reference to in his report and therefore considered relevant to his investigation.

“It’s limited because it’s what special counsel Mueller decided to put in his report,” Letter said. “This is already vastly more limited than us just coming in and saying, ‘Impeachment, we get everything.’”

Freeman said Congress has over time changed its arguments for why it needs the testimony, and that though lawmakers now say  they want the information for a Senate impeachment trial, they initially sought it as part of the Mueller investigation — which concerns events that are separate from the impeachment inquiry.

He also questioned the House’s need for the testimony, suggesting it already has plenty of information about the investigation through the unredacted portions of Mueller’s report.

But Judge Judith Rogers, a nominee of former President Bill Clinton, took issue with that argument, saying: “We all know that a single sentence can be devastating and can lead to exculpatory as well as incriminating evidence. The length and the percentage (of redactions) is not necessarily dispositive.”

Testimony taken by grand juries is traditionally treated as secret, in part to protect the privacy of people who are not charged or who are considered peripheral to a criminal investigation. In certain cases, though, courts have authorized the disclosure of the information. The House Judiciary Committee, for instance, obtained grand jury materials from the Watergate investigation in the 1970s.

Judge Neomi Rao, a Trump appointee, questioned whether courts had the authority to force one branch of government to turn over grand jury material to another branch, and asked how Congress had the right to a court-enforceable order to obtain such information.

She appeared reluctant to rule in the House’s favor on what she described as a “political question.”

Though Letter said courts are “constantly” ordering the disclosure of grand jury material, Rao responded: “The power to order might be different in this context where it’s the Congress that’s seeking the materials and there’s an interbranch dispute.”

Letter said the courts are the proper place to resolve the dispute, noting that though Congress theoretically has authority to dispatch a sergeant-at-arms to the Justice Department to collect the material and to engage in a “gun battle” if necessary, that’s not the ideal course of action.

The third judge on the panel, Thomas Griffith, an appointee of President George W. Bush, peppered both attorneys with questions about their arguments.

He suggested Letter was invoking the word “impeachment” as a mantra for arguing that Congress was entitled to everything it wanted. But he also asked Freeman, the Justice Department lawyer, why the court shouldn’t just follow the Nixon-era precedent of grand jury disclosure — which he called the “gold standard” — and uphold the lower court decision in this case.

“The district court is saying, if we’re going to err here — and that’s not the right word to use — we’re going to err on the side of giving them more, not less, just the way (Judge John) Sirica did in Watergate, which is the gold standard,” Griffith said. “That’s the gold standard.”