On Tuesday, a panel of the U.S. Court of Appeals for the D.C. Circuit issued a 2–1 decision upholding a lower-court ruling that ordered the Department of Justice turn over to Congress the parts of the Mueller report that have until now remained secret.
Judge Thomas B. Griffith, a conservative George W. Bush appointee, sided with Judge Judith W. Rogers, a progressive Bill Clinton appointee, to say that the lower court could authorize disclosure of the grand jury materials to Congress in connection with an impeachment investigation, as it had ordered in October. Judge Neomi Rao—a Donald Trump appointee—offered a lengthy dissent that would have protected the president from disclosure of the still-unreleased portions of the report.
Rao’s latest efforts to shield the president from legal liability, though, appear likely to fail. The judicial precedents involved stretch back to the Nixon administration, and Rogers, in invoking them, was backed up by a jurist with conservative bona fides. Griffith added a concurrence demolishing Rao’s dissent, and the DOJ now has one week to appeal the decision.* We may soon learn what is in the portions of the Mueller report Attorney General William Barr has been so desperate to keep from Congress and the public that his DOJ was willing to argue that key Watergate-era precedents should no longer be enforced.
One year ago this month, Barr released a letter ostensibly summarizing the Mueller report, which seemed to exonerate President Donald Trump of all wrongdoing. When the report itself was released a few weeks later, the public saw how that summary had misleadingly left out key portions and context that caused Robert Mueller himself to question Barr’s handling of the report. Even that version of the report, though, featured significant redactions—most of them coming under judicial Rule 6(e), which requires grand jury materials to be kept secret unless a judge finds one of a specific set of exceptions has been met.
One of those exceptions is if the material needs to be accessed in relation to, or in preparation for, a judicial proceeding. In the 1974 case Watergate case Haldeman v. Sirica, the D.C. Circuit ruled that Chief Judge John Sirica of the District Court for the District of Columbia had been correct in authorizing the release of what was known as the Watergate grand jury’s “road map” to Congress, in connection with the legislative branch’s impeachment power. That ruling was reinforced just last year in the D.C. Circuit in the case of McKeever v. Barr, which found Congress’ need for materials during an impeachment investigation “as fitting within the Rule 6 exception for ‘judicial proceedings.’ ”
In October, Department of Justice attorneys argued in District Court that the McKeever and Haldeman rulings should not apply, arguing that “if that case came today a different result would be obtained.”
Chief Judge Beryl A. Howell expressed astonishment at this “extraordinary position” and a few weeks later issued a 75-page opinion authorizing the materials to be turned over as under past precedent.
On Tuesday, the circuit panel found that Howell had exercised her discretion properly and that the material should now be turned over. In dissent, Rao claimed that the court did not have authority to compel DOJ to release grand jury materials, only to authorize that it be turned over. The president, under her analysis, would hold an effective veto over whether a court’s judgment required the administration to hand over evidence of high crimes and misdemeanors to Congress. According to Rao’s argument, because the DOJ is the custodian of the materials, it can’t be compelled to turn over the materials by the court unless Congress proves it has standing.
Griffith’s’ concurrence emphatically rejected this theory:
The dissent insists that “possession” is the “dispositive factor” in our jurisdictional analysis: When the court holds the grand jury materials, it may hand them over; when it does not, it may not compel the Department to do so.
Griffith punctured this argument by noting that the court clearly has authority to compel in-camera review that would bring the grand jury materials into its own possession. If the court can compel the DOJ to turn over the grand jury materials to a judge, and it can then decide to hand over the materials to Congress, it can similarly “cut itself out as the intermediary” and order they be handed over directly to Congress.
Griffith further dismissed Rao’s argument that past courts had authorized the DOJ handing over of grand jury materials to Congress without having compelled the same. As Griffith noted, even the DOJ’s own attorneys refused to claim it could ignore a court’s authorization:
As the Department explained at oral argument, “it just doesn’t seem like a plausible reading of Rule 6(e) that the District Court could authorize [disclosure] but that the Department of Justice would then say well, we don’t want to turn over [the] information.”
Ultimately, Rogers and Griffith recognized together that the DOJ has no good reason to ignore its own history of repeatedly turning over grand jury materials to Congress during impeachment cases—including Watergate—and that the court controls the evidence in question, not the DOJ.
“In short, it is the district court, not the Executive or the Department, that controls access to the grand jury materials at issue here,” the majority opinion noted. “The Department has objected to disclosure of the redacted grand jury materials, but the Department has no interest in objecting to the release of these materials outside of the general purposes and policies of grand jury secrecy, which as discussed, do not outweigh the Committee’s compelling need for disclosure.”
Nearly one full year after the Mueller report was first produced, this ruling offers yet another devastating judicial assessment of Barr’s handing of that report. It could also open the door for the public to finally learn what he’s been trying to hide this whole time.
Correction, March 10, 2020: This article originally misidentified Judge Judith W. Rogers as having written the concurring opinion in this case.