Comm. on the Judiciary v. U.S. Dep't of Justice (In re Comm. on the Judiciary)

• Citation: 951 F.3d 589
• Decision Date: 10 March 2020
• Docket Number: No. 19-5288,19-5288
• Parties: IN RE: Application of the COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, for an Order Authorizing the Release of Certain Grand Jury Materials, Committee on the Judiciary, United States House of Representatives, Appellee v. United States Department of Justice, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

951 F.3d 589

IN RE: Application of the COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, for an Order Authorizing the Release of Certain Grand Jury Materials,Committee on the Judiciary, United States House of Representatives, Appellee

v.United States Department of Justice, Appellant

No. 19-5288

United States Court of Appeals, District of Columbia Circuit.

Argued January 3, 2020

Decided March 10, 2020

Mark R. Freeman, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Hashim M. Mooppan, Deputy Assistant Attorney General, and Michael S. Raab and Brad Hinshelwood, Attorneys.

Douglas N. Letter, General Counsel, U.S. House of Representatives, argued the cause for appellee. With him on the brief were Todd B. Tatelman, Deputy General Counsel, Megan Barbero and Josephine Morse, Associate General Counsel, Adam A. Grogg and William E. Havemann, Assistant General Counsel, Jonathan B. Schwartz, Attorney, Annie L. Owens, Mary B. McCord, Washington, DC, and Daniel B. Rice.

Elizabeth B. Wydra, San Francisco, CA, Brianne J. Gorod, and Ashwin P. Phatak were on the brief for amicus curiae Constitutional Accountability Center in support of the Committee on the Judiciary, U.S. House of Representatives.

Before: Rogers, Griffith, and Rao, Circuit Judges.

Concurring opinion by Circuit Judge Griffith.

Dissenting opinion by Circuit Judge Rao.

Rogers, Circuit Judge:

Article I of the United States Constitution provides that the House of Representatives "shall have the sole Power of Impeachment." U.S. CONST. art. I, § 2, cl. 5. Further, the Senate "shall have the sole Power to try all Impeachments." Id. § 3, cl. 6.

The Committee on the Judiciary of the U.S. House of Representatives seeks to obtain the redacted grand jury materials referenced in the Special Counsel’s Report in connection with its impeachment investigation of President Donald J. Trump. The district court authorized the disclosure of these grand jury materials pursuant to the "judicial proceeding" exception in Federal Rule of Criminal Procedure 6(e)(3)(E)(i). For the following reasons, because that exception encompasses impeachment proceedings and the Committee has established a "particularized need" for the grand jury materials, the Order of the district court is affirmed.

I.

In May 2017, Deputy U.S. Attorney General Rod Rosenstein appointed Robert S. Mueller, III, as Special Counsel to investigate Russian interference in the 2016 presidential election, including any links or coordination between the Russian government and individuals associated with President Trump’s election campaign. As part of this investigation, a grand jury sitting in the District of Columbia "issued more than 2,800 subpoenas" and almost 80 witnesses testified before the grand jury. Special Counsel Robert S. Mueller, III, Report on the Investigation into Russian Interference in the 2016 Presidential Election, Vol. I at 13 (March 2019) ("The Mueller Report"). In addition, the Special Counsel’s Office interviewed "approximately 500 witnesses" under oath, id. , including members of the Administration.

On March 22, 2019, the Special Counsel submitted his confidential two-volume report to the Attorney General pursuant to 28 C.F.R. § 600.8(c). Volume I summarizes Russian interference in the 2016 presidential election and describes the "numerous links between the Russian government and the Trump Campaign." Vol. I at 1–3. Nevertheless, the Special Counsel concluded that "the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities." Id. at 2. Volume II outlines the Special Counsel’s examination of whether the President obstructed justice in connection with the Russia-related investigations. The Special Counsel declined to exonerate the President. Citing to an opinion issued by the Office of Legal Counsel, the Special Counsel stated that indicting or criminally prosecuting a sitting President would violate the separation of powers. Notably, for purposes of the Committee’s need for the redacted grand jury materials, the Special Counsel stated that a federal indictment would "potentially preempt constitutional processes for addressing presidential misconduct." Vol. II at 1 (citing U.S. CONST. art. I, § 2, cl. 5 ; § 3, cl. 6 ).

The Attorney General released a public version of the Mueller Report in April 2019, with redactions for grand jury materials, and other information that he determined could compromise ongoing intelligence or law enforcement activities, harm ongoing criminal matters, or unduly infringe upon the personal privacy interests of peripheral third parties. Letter from Attorney General Barr to Senate Judiciary Chairman Graham and Ranking Member Feinstein, and House Judiciary Chairman Nadler and Ranking Member Collins (Apr. 18, 2019). The Assistant Attorney General wrote the Committee that certain members of Congress, including the Chairman and Ranking Members of the House Judiciary Committee, could review an unredacted version of the Report, except for redactions relating to grand jury information, which the Attorney General claimed he was prohibited from disclosing to Congress by law citing Rule 6(e). Letter from Assistant Attorney General Boyd to Senate Judiciary Chairman Graham and House Judiciary Chairman Nadler (Apr. 18, 2019).

In October 2019, the House of Representatives passed House Resolution 660, which directed six committees, including the House Judiciary Committee and the House Intelligence Committee, to continue their ongoing impeachment investigations. H. Res. 660, 116th Cong. (2019). On December 18, 2019, the full House adopted two Articles of Impeachment against President Trump. H. Res. 755, 116th Cong. (2019). The first Article of Impeachment, "Abuse of Power," alleges that President Trump "solicited the interference of a foreign government, Ukraine, in the [upcoming] 2020 United States Presidential election." Id . at 1. The second Article, "Obstruction of Congress," alleges that President Trump "directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives." Id. at 2.

The House Judiciary Committee’s Report on the Impeachment of President Trump asserts that the conduct described by these Articles is consistent with the President’s "inviting and welcoming Russian interference in the 2016 United States Presidential election," H. Rep. No. 116-346, at 127 (2019), and the President’s "endeavor to impede the Special Counsel’s investigation into Russian interference ... as well as [his] sustained efforts to obstruct the Special Counsel after learning that he was under investigation for obstruction of justice," id. at 159–60. The Committee Report also makes clear that although two Articles of Impeachment have been approved, the Committee’s impeachment investigation related to the Mueller Report is ongoing. Id. at 159 n.928; see also Appellee’s Supp. Br. 17 (Dec. 23, 2019); Oral Arg. Tr. at 59–60 (Jan. 3, 2020).

On July 26, 2019, the House Judiciary Committee filed an application for an order authorizing the release of certain grand jury materials related to the Mueller Report pursuant to Rule 6(e)(3)(E)(i). The Committee requested three categories of grand jury materials: (1) all portions of the Mueller Report that were redacted pursuant to Rule 6(e) ; (2) any portions of grand jury transcripts or exhibits referenced in those redactions; and (3) any underlying grand jury testimony and exhibits that relate directly to certain individuals and events described in the Mueller Report. The Committee proposed a "focused and staged disclosure" of the first two categories of material, to be followed as necessary by disclosure of the third category. In re App. of Comm. on Judiciary, U.S. House of Representatives, for an Order Authorizing Release of Certain Grand Jury Materials ("App. for Mueller Report Grand Jury Materials "), 414 F.Supp.3d 129, 176 (D.D.C. 2019) (internal quotation marks and citation omitted). The Department of Justice, which is the custodian of the grand jury records, see Rule 6(e)(1), opposed the application and submitted an ex parte declaration disclosing the contents of the Rule 6(e) redactions in Volume II and Appendix C of the Mueller Report for the district court to review in camera . The record indicates that the district court reviewed this declaration but that the district court did not receive or review any of the grand jury materials redacted in Volume I of the Report, nor any of the grand jury transcripts or exhibits referenced in these redactions.

On October 25, 2019, the district court granted the Committee’s application. The district court concluded that a Senate impeachment trial is a "judicial proceeding" under Rule 6(e).

App. for Mueller Report Grand Jury Materials , 414 F.Supp.3d at 149. The court noted that "historical practice, the Federalist Papers, the text of the Constitution, and Supreme Court precedent all make clear" that "impeachment trials are judicial in nature and constitute judicial proceedings." Id. at 153 ; see also id. at 152–60. The court further explained that, in any event, it was bound by circuit precedent to conclude that an impeachment trial is a "judicial proceeding," citing Haldeman v. Sirica , 501 F.2d 714 (D.C. Cir. 1974) (en banc ) and McKeever v. Barr , 920 F.3d 842 (D.C. Cir. 2019). App. for Mueller Report Grand Jury Materials , 414 F.Supp.3d at 158–60. The district court also found that the Committee established a "particularized need" because the Committee’s compelling need for the requested material to "investigate fully" and "to reach a final determination about conduct by the President described in the Mueller Report," id. at 178, outweighs any remaining grand jury secrecy interests, id. at 180–82, and the requested disclosure was tailored to this need, id. at 182.

The district court therefore authorized the disclosure of...