Justices block release of secret Mueller grand jury materials

Today the Supreme Court blocked the disclosure to the House Judiciary Committee of grand jury materials from the investigation by Special Counsel Robert Mueller. The Department of Justice had asked the court 13 days ago to put the release of the materials on hold while it appeals a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that would require it to provide portions of the Mueller report that had been redacted, along with grand jury transcripts and materials that had been kept secret. Today the justices granted that request, temporarily staying the D.C. Circuit’s ruling until DOJ files its petition for review, which now has a June 1 deadline, and the Supreme Court rules on that petition.

The dispute began last year, shortly after Attorney General William Barr released a version of Mueller’s report to Congress and the public that contained redactions made in part under Federal Rule of Criminal Procedure 6(e), to protect the secrecy of grand jury materials. According to the House Judiciary Committee, the redactions at the heart of this case “bear on whether the President committed impeachable offenses by obstructing the FBI’s and Special Counsel’s investigation into Russian interference in the 2016 election and his possible motivations for doing so.”

In July 2019, after DOJ declined to comply with a subpoena for the unredacted Mueller report, the committee went to federal district court in Washington, D.C., where it asked the chief judge, Beryl Howell, to order the disclosure of the parts of the Mueller report redacted under grand jury secrecy rules, as well as the related grand jury materials, such as transcripts and exhibits. The committee argued that the release was appropriate under a portion of Rule 6(e) that allows courts to disclose grand jury materials “preliminarily to or in connection with a judicial proceeding.”

The district court agreed with the committee’s request, reasoning that the rule’s reference to disclosure before a “judicial proceeding” includes disclosures ahead of a Senate impeachment trial. Moreover, the district court concluded, the committee had shown that it had a specific need for the material that outweighed any need for secrecy, particularly because Mueller’s investigation was over.

The DOJ appealed to the D.C. Circuit, which issued a decision in March that upheld the district court’s order. The department then went to the Supreme Court on May 7, asking the justices to intervene to prevent the release of the grand jury materials until it could file a petition for review of the D.C. Circuit’s order and the Supreme Court ruled in the case. Otherwise, the government argued, it would “have to disclose the materials on May 11, 2020, which would irrevocably lift their secrecy and possibly frustrate the government’s ability to seek further review.”

With the May 11 deadline looming, the court on May 8 put a temporary hold – to which the House had not objected – on the release of the grand jury materials and ordered the committee to respond by May 18.

In its brief opposing the government’s request, the committee urged the justices to stay out of the dispute and leave the D.C. Circuit’s order requiring the disclosure of the grand jury materials in place. The justices are not likely to grant DOJ’s eventual petition, the committee argued, because – among other things – the unanimous ruling by the D.C. Circuit was correct: The Constitution, the Federalist Papers and the Supreme Court’s own cases all confirm that a Senate impeachment trial is a judicial proceeding. And it doesn’t matter, the committee added, that the impeachment trial ended earlier this year, because the investigation into the president’s conduct continues; if “this material reveals new evidence supporting the conclusion that President Trump committed offenses that are not covered by” the articles of impeachment that the House adopted last year, then the committee could respond by recommending new articles.

Moreover, the committee stressed, it has put protocols into place to ensure that the materials will remain secret when they are disclosed, so DOJ’s need to block the release is significantly reduced. By contrast, the committee suggested, it has been over a year since the committee first asked for the materials, and more than six months since the district court ordered their release: The committee needs the materials to carry out an investigation, and DOJ should not be able to “run[] out the clock on the impeachment process” with more delays. But if the court did block the release of the documents, the committee concluded, it should require DOJ to expedite the filing of its petition, so that the justices can decide whether to review the case on the merits before their summer recess.

In its reply brief, DOJ indicated that it did not object to fast-tracking its petition for review. Alternatively, the department suggested, the justices could treat its request to temporarily block the release of the grand jury materials as a petition for review, grant that petition, “and set the case for argument at the earliest opportunity.”

Today’s order turned down the department’s request to treat the stay request as a petition for review, but it did put the dispute on a fast track, as the committee had requested. The justices indicated that the release of the materials would be put on hold until DOJ could file, and they could rule on, a petition for review, as long as the petition is filed by 5 p.m. on June 1 – the deadline that the committee had suggested. Although the court did not say so explicitly, such a timetable strongly suggests that the justices do intend to decide whether to take up the case on the merits before they leave for their summer recess, whenever that might be.

This post was originally published at Howe on the Court.