In re Judiciary
| Decision Date | 29 October 2019 |
| Docket Number | GrJury Action No. 19-48 (BAH) |
| Citation | 414 F.Supp.3d 1 |
| 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 |
| Court | U.S. District Court — District of Columbia |
Douglas N. Letter, Adam Anderson Grogg, U.S. House of Representatives Office of General Counsel, Annie L. Owens, Georgetown University Law Center, Daniel Bruce Rice, Joshua Geltzer, Institute for Constitutional Advocacy and Protection, Washington, DC, for Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials.
BERYL A. HOWELL, Chief Judge The Department of Justice ("DOJ") seeks to stay this Court's order, issued on October 25, 2019, requiring DOJ to disclose, by October 30, 2019, to the House Judiciary Committee ("HJC") the grand jury material redacted, pursuant to Federal Rule of Criminal Procedure 6(e), from the public version of Special Counsel Robert S. Mueller III's Report On The Investigation Into Russian Interference In The 2016 Presidential Election ("Mueller Report"), as well as any underlying transcripts or exhibits referenced in those redactions. DOJ's Mot. to Stay Disclosure Order Pending Appeal ("Mot. Stay"), ECF No. 48.1 For the reasons set out below, the motion for a stay is denied.
The law is well settled that a stay of a final judicial order pending appeal is an "extraordinary remedy." Cuomo v. NRC , 772 F.2d 972, 978 (D.C. Cir. 1985) (per curiam). The Supreme Court has explained that "[a] stay is an ‘intrusion into the ordinary processes of administration and judicial review,’ " Nken v. Holder , 556 U.S. 418, 427, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Va. Petroleum Jobbers Ass'n v. FPC , 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam)), and, further, that such a stay "is not a matter of right, even if irreparable injury might otherwise result to the appellant," id. (quoting Virginian R. Co. v. United States , 272 U.S. 658, 672, 47 S.Ct. 222, 71 L.Ed. 463 (1926) ). The party requesting a stay bears the burden of showing that the circumstances of a particular case justify an exercise of judicial discretion upon consideration of four "traditional," id. at 434, 129 S.Ct. 1749, and "stringent requirements," Van Hollen v. FEC , Nos. 12-5117 & 12-5118, 2012 WL 1758569, at *1 (D.C. Cir. May 14, 2012) (per curiam): "(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the Court grants the stay; and (4) the public interest in granting the stay," Cuomo , 772 F.2d at 974 ; see also Nken , 556 U.S. at 434, 129 S.Ct. 1749 (); Hilton v. Braunskill , 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (same).
The Supreme Court has indicated that "[t]he first two factors of the traditional standard are the most critical," Nken , 556 U.S. at 434, 129 S.Ct. 1749, and has elaborated, as to the first factor, that "[i]t is not enough that the chance of success on the merits be ‘better than negligible,’ " id. (quoting Sofinet v. INS , 188 F.3d 703, 707 (7th Cir. 1999) ). Rather, "[m]ore than a mere ‘possibility’ of relief is required." Id. (alteration in original) (internal quotation marks omitted). The D.C. Circuit has further emphasized the importance of the first factor, stating that "show[ing] little prospect of success" on appeal is "an arguably fatal flaw for a stay application." Citizens for Responsibility & Ethics in Washington v. FEC , 904 F.3d 1014, 1019 (D.C. Cir. 2018) (per curiam); see also Sherley v. Sebelius , 644 F.3d 388, 393 (D.C. Cir. 2011) ().
As to the requisite irreparable injury showing, "simply showing some ‘possibility of irreparable injury’ fails to satisfy the second factor." Nken , 556 U.S. at 434–35, 129 S.Ct. 1749 (citation omitted) (quoting Abbassi v. INS , 143 F.3d 513, 514 (9th Cir. 1998) ). Rather, "[a] party moving for a stay is required to demonstrate that the injury claimed is ‘both certain and great.’ " Cuomo , 772 F.2d at 976 (quoting Wis. Gas Co. v. FERC , 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). Indeed, "[b]are allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur." Wis. Gas , 758 F.2d at 674 (emphasis in original).
Set against these standards, analysis of the four requisite factors mandates denial of the stay.
DOJ is not likely to succeed on the merits on appeal. The legal standard for likelihood of success to obtain a stay of an order is not "a 50% plus probability," Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc. , 559 F.2d 841, 844 (D.C. Cir. 1977), but is rather a finding that "the [movant] has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation," id. Here, DOJ argues, first, that there is a "substantial question as to whether an impeachment trial constitutes a ‘judicial proceeding’ within the meaning of Rule 6(e)," Mot. Stay at 4, because "[i]mpeachment and removal proceedings in the legislature are not ‘judicial proceedings’ within the ordinary meaning of that language," id. at 2; and, second, that HJC failed to establish "particularized need" for the requested materials because (a) HJC failed to articulate a "specific reason the information is needed," id. at 5 (emphasis in original), and (b) "the amount of information [already] released in connection with the Mueller Report" minimizes HJC's need for the materials, id. at 6.2
The serious infirmities in DOJ's arguments have already been addressed at length. See In re Application of Committee on Judiciary, U.S. House of Representatives, for an Order Authorizing Release of Certain Grand Jury Materials , No. 19-gj-48 (BAH), 414 F.Supp.3d 129, 2019 WL 5485221, at *11–23 (D.D.C. Oct. 25, 2019) (judicial proceeding); id. at 174–82, at *32–38 (particularized need). Regarding the first argument, DOJ continues to ignore that the D.C. Circuit has already given "judicial proceeding," as used in Rule 6(e), a "broad interpretation," In re Sealed Motion , 880 F.2d 1367, 1379 (D.C. Cir. 1989) (per curiam); that 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), reh'g denied , Order, No. 17-5149, ––– F.Supp.3d ––––, 2019 WL 3954720 (D.C. Cir. July 22, 2019), docketing petition for cert. , No. 19-307, 2019 WL 4235726 (U.S. Sept. 5, 2019), are binding D.C. Circuit precedent that rejected DOJ's position; and 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.
Regarding the "particularized need" arguments that DOJ asserts present colorable appealable issues, DOJ is especially unlikely to succeed given that determinations of "particularized need" are committed to the "considered discretion of the district court." Douglas Oil Co. of Ca. v. Petrol Stops Nw. , 441 U.S. 211, 228, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). Moreover, courts have consistently recognized that the "interest in conducting a full and fair impeachment inquiry" is a sufficiently particularized need. In re Request for Access to Grand Jury Materials , 833 F.2d 1438, 1442 (11th Cir. 1987) ; see also Order, In Re: Grand Jury Investigation of U.S. Dist. Judge G. Thomas Porteous, Jr. , No. 2:09-mc-04346-CVSG, at 3 (E.D. La. Aug. 6, 2009), summarily aff'd sub nom. In re Grand Jury Proceeding , No. 09-30737 (5th Cir. Nov. 12, 2009); In re Report & Recommendation of June 6, 1972 Grand Jury ( In re 1972 Grand Jury Report ), 370 F. Supp. 1219, 1230 (D.D.C. 1974) (Sirica, C.J.). DOJ's minimal chance of success on appeal, by itself, is likely "fatal" to its motion, Citizens for Responsibility & Ethics in Washington , 904 F.3d at 1019, but DOJ fares no better on the other factors.
As to the second critical factor, irreparable harm to the moving party, DOJ must, at a minimum, show an especially high degree of irreparable harm considering DOJ's failure to establish a likelihood of success on appeal. See Cuomo , 772 F.2d at 984 ( ). DOJ alleges irreparable harm without a stay because "once the grand jury information is released to the HJC ..., information cannot ever be clawed back," and DOJ claims that this harm "is particularly acute here, where there is no guarantee the HJC will keep this sensitive information secret." Mot. Stay at 3. This assertion is predicated on the apparent view that, despite the HJC's special protocols for handling grand jury material and keeping that information confidential, those protocols cannot be trusted. To the contrary, given those protocols, a disclosure of grand jury material made under the October 25 Order that is found to be erroneous, can be clawed back. To the extent that underlying DOJ's concern is a lack of trust in those protocols, history shows that HJC has been and can be trusted. See In re 1972 Grand Jury Report , 370 F. Supp. at 1230 ( ...
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Comm. on the Judiciary v. U.S. Dep't of Justice (In re Comm. on the Judiciary)
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