Congress Wins Access to Confidential Mueller Probe Records

(Bloomberg) —House Democrats won access to confidential records from Special Counsel Robert Mueller’s investigation, a victory over President Donald Trump’s efforts to deny them information.

“It is the district court, not the Executive or the Department, that controls access to the grand jury materials at issue here,” U.S. Circuit Judge Judith Wilson Rogers in Washington wrote for the majority. The panel delayed its ruling for seven days to give the Trump administration an opportunity to seek a so-called en banc rehearing before a larger panel of appeals court judges.

The outcome is in contrast to the same appeals court’s Feb. 28 ruling, which sided with the administration in saying the judiciary could not decide a dispute between the executive and legislative branches. In that 2-1 decision, the court dismissed a congressional lawsuit seeking the testimony of former White House Counsel Don McGahn.

House Democrats have requested an en banc rehearing of the McGahn ruling, which has since been cited by the Trump administration in seeking the dismissal of other congressional cases, including one seeking his tax returns and other financial information.

In a statement, House Speaker Nancy Pelosi hailed Tuesday’s ruling. “This ruling is 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,” she said.

A message seeking comment from the Justice Department wasn’t immediately returned.

The federal appeals court said impeachment proceedings met the legal standard for access to sealed grand jury record. In a 2-1 decision, the court rejected the Justice Department’s argument that the court lacked authority over the case.

Rogers, who was named to the court by President Bill Clinton was joined in Tuesday’s ruling by U.S. Circuit Judge Thomas Griffith, a George W. Bush appointee. Trump appointee Neomi Rao dissented, citing the McGahn ruling.

Griffith had also sided with the majority in the McGahn ruling, in which Rogers dissented. That decision “all but assures future presidential stonewalling of Congress,” Rogers wrote at the time.

Tuesday’s majority said House Democrats’ quest for grand jury records was different from their subpoena for McGahn’s testimony, since the records had already been obtained as part of the judicial process.

Grand jury records typically remain sealed to protect the identity of those who are investigated but not charged, as well as details of ongoing investigations.

The House Judiciary Committee sought the records as part of its impeachment inquiry, claiming it needed access to the information to better understand Trump’s knowledge of and role in events chronicled in Mueller’s 448-page report. Tuesday’s ruling upheld a lower court decision in favor of the committee in October.

Relevant Information

Justice Department lawyer Mark Freeman had argued before the appeals court in January that treating impeachment as a judicial proceeding meant the judges had to assess the legal theories being put forth by House Democrats and determine whether the information sought was actually relevant. He said it wasn’t.

“The House has adopted two articles of impeachment that don’t have anything to do with this case,” Freeman said. The House sought Trump’s impeachment based on his more recent efforts to get Ukraine to launch an investigation of a political opponent, former Vice President Joe Biden.

House General Counsel Douglas Letter said the information from Mueller’s probe remained relevant, even though the president’s impeachment was based on events that transpired after the special counsel’s investigation was closed, saying it could conceivably lead to new articles of impeachment.

“That is on the table, there is no doubt,” he said.

The grand jury information will arrive too late to affect the Ukraine impeachment effort, which ended last month with the president’s acquittal in the Senate.

The case is In Re Application of the Committee on the Judiciary, 19-5288, U.S. Court of Appeals, District of Columbia Circuit (Washington).