Jurisprudence

The Supreme Court Has to Choose Between Trump and the Rule of Law

Trump looking like he's staring down Roberts as Kagan looks on.
President Donald Trump talks with Supreme Court Chief Justice John Roberts as Associate Justice Elena Kagan looks on before the State of the Union address in the House chamber on Feb. 4. Leah Millis-Pool/Getty Images

A little more than a year ago, special counsel Robert Mueller released his report concerning Russian interference in the 2016 election and President Donald Trump’s efforts to obstruct that investigation. Remarkably, Congress still has not seen the entire, unredacted report. The Department of Justice withheld portions of the report that concerned grand jury matters, and it has fought the release of those excerpts to Congress. Now, the Supreme Court will decide whether Congress can view the unredacted report, as centuries of precedent dictate, or whether the Trump administration can continue to obstruct Congress’ legitimate oversight request. The court should decide this case quickly to avoid rewarding the president’s repeated attempts to delay and obstruct Congress’ investigation. If it doesn’t, not only will it be ignoring decades of precedent, it will have helped to place this president further outside the reach of the law.

This case concerns the Federal Rule of Criminal Procedure that provides that grand jury matters must generally be kept secret. Significantly, the rule in question, known as Rule 6(e), has an important exception that allows district courts to release such materials “preliminarily to or in connection with a judicial proceeding.” Citing that rule, last August, the House requested that a district court release the portions of the Mueller report that were redacted as grand jury materials, arguing that an impeachment proceeding is a “judicial proceeding.”

As I’ve explained before, that argument is supported by the text of the Constitution, which makes clear that in an impeachment, the House functions as a grand jury and the Senate is a tribunal that decides whether to remove—over which the chief justice of the Supreme Court presides for presidential impeachments. Indeed, Article I, Section 3 of the Constitution uses the language of judicial proceedings, stating that “the Senate shall have the sole Power to try all Impeachments,” that “no Person shall be convicted without” a two-thirds majority, and that “judgment in Cases of Impeachment shall not extend further than to removal from Office.” Further, Article III, Section 2 says that “the Trial of all Crimes, except in Cases of Impeachment; shall be by Jury,” indicating that impeachment is a type of “trial” for “crimes.”

Precedent also supports the House’s request. In 1811, a grand jury in the Mississippi Territory forwarded the House of Representatives its presentment specifying charges against federal territorial Judge Harry Toulmin, which set in motion a House impeachment inquiry. More recently, during the Nixon impeachment, a district court forwarded grand jury materials regarding the Watergate investigation to the House Judiciary Committee. (During the early phase of this case, Department of Justice attorneys left Chief Judge Beryl A. Howell of the District Court for the District of Columbia stunned after arguing that the same outcome in that case, Haldeman v. Sirica, could not be achieved today.) Also, in 1987, a Miami federal court permitted the disclosure of grand jury materials to the House Judiciary Committee to further its impeachment investigation of a federal judge, and in 2010, a Louisiana district court approved the release of grand jury materials to the House for use in its impeachment investigation of a different judge.

Notably, the Department of Justice consented to the release of grand jury materials in these earlier cases. But consistent with its pattern of obstructing legitimate congressional oversight, the Trump administration has refused to turn over the unredacted Mueller report to Congress and has fought that disclosure for nearly a year in federal court. Last week, despite losing in the district court and the Court of Appeals for the District of Columbia Circuit, the department filed a petition for certiorari, asking the Supreme Court to take this case and overturn the lower court’s order requiring disclosure.

The Supreme Court should reject that request. As explained above, both the text and history of the Federal Rules, as well as the text of the Constitution itself, clearly support the disclosure of grand jury materials to the House. The department’s principal response is that a rule permitting disclosure would require federal courts to involve themselves in impeachment proceedings to “scrutinize specific legal theories of impeachment and to sit as evidentiary gatekeepers for impeachment proceedings.” But as the D.C. Circuit’s majority opinion explained, courts can “mitigate such concerns in the impeachment context because the district court need only decide if the requested grand jury materials are relevant to the impeachment investigation … without commenting on the propriety of that investigation.” Moreover, a contrary holding—that such materials could not be transmitted to the House—would necessarily require the judiciary to place a thumb on the scale against the House’s ability to complete a full and fair impeachment investigation by denying it relevant information.

On top of that, there is no “circuit split” here between different courts. Indeed, in its petition, the government fails to cite a single case holding that Congress cannot view grand jury materials relevant to an impeachment inquiry—and disagreement among lower courts is typically a key factor in the Supreme Court’s decision whether to hear in a case. In short, there is simply no reason for the court to grant review in this case.

However, if the justices conclude that the importance of this issue justifies their review despite a lack of disagreement between the lower courts, they should move quickly. Typically, when the Supreme Court grants a case, it seeks further briefing, hears oral argument, and then issues a decision months later. In this case, the ordinary procedure would mean that oral argument would happen this fall, with a decision unlikely before 2021.

But unwisely following that procedure here could result in a de facto win for the Trump administration even if the court eventually decides that Congress is right on the law. As I’ve explained before, the House is not a continuing body, and the current Congress exists only until Jan. 3, 2021, at which point its ongoing investigations will end, its subpoenas will expire, and a new Congress will be sworn in. Thus, if the case is not argued until the fall and not decided until spring 2021, the election will be over and the 116th Congress will have long since adjourned. Congress needs to see the full Mueller report now—during this congressional term—to decide if it contains evidence of impeachable conduct. In short, if the Supreme Court does not decide this case in a timely manner, there is a real risk that even if Congress should have access to these grand jury materials, Trump will manage to run out the clock and delay any decision until it is too late.

Thus, the Supreme Court should do one of two things: Either it should decline to hear the case at all or it should hear the case this summer on an expedited timeline. Doing so is not unprecedented: In United States v. Nixon, a case about a president’s compliance with subpoenas, the court heard argument on July 8, 1974, and decided the case just two weeks later on July 24. To ensure that this president is not above the law, and that Congress can complete its legitimate investigation concerning the Mueller report, the court should act just as quickly now.

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