Fight for Mueller grand jury material likely to stretch into October

The House Judiciary Committee’s fight for grand jury material underlying former special counsel Robert Mueller’s report is unlikely to be resolved for at least two months.

Attorneys for the committee and the Justice Department together proposed a schedule on Wednesday that would push oral arguments in the case to October at the earliest.

{mosads}The parties suggested in a proposed scheduling order that the Justice Department file its initial response to the committee’s application for the grand jury material by Sept. 13, after which the House panel would be required to respond by Sept. 30.

The committee requested that the court then schedule oral arguments, though the Justice Department “believes the matter can be decided on the papers, but defers to the Court as to whether or not oral argument would be helpful,” according to Wednesday’s filing.

The court would then rule on whether the committee should have access to the files. If the judge decides to hold oral arguments, that would likely push a ruling even further down the line.

The Judiciary Committee on Friday filed an application in D.C. District Court to obtain the grand jury material underlying Mueller’s report on Russia’s election interference and possible obstruction of justice by President Trump.

Rep. Jerrold Nadler (D-N.Y.), the panel’s chairman, has argued his committee needs the material in order to decide whether to recommend impeachment articles against Trump.

“Because Department of Justice policies will not allow prosecution of the sitting president, the United States House of Representatives is the only institution of the federal government that can now vote President Trump accountable for these actions,” Nadler said at a press conference Friday, quoting from the application his panel later filed in court.

{mossecondads}“To do so, the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional duty power of the utmost gravity — recommendation of articles of impeachment. That duty calls in the first instance to the House Committee on the Judiciary,” Nadler added. 

Chief Judge Beryl Howell, an Obama appointee, issued an order last week directing the Judiciary Committee to “confer with the appropriate office” within the Justice Department to come up with a proposed scheduling order to guide further proceedings in the case.

Howell approved the proposed schedule late Wednesday afternoon.

It’s an open question whether the House panel will succeed in gaining access to the underlying grand jury material, which is generally subject to secrecy under federal rules with few exceptions. A judge must issue a court order allowing for their release.

A judge can order the disclosure of grand jury material that is “preliminarily to or in connection with a judicial proceeding,” which in some cases has allowed for it to be shared with Congress in connection with impeachment proceedings.

In the application filed last week, House General Counsel Doug Letter wrote that the D.C. Circuit has interpreted that exception “to apply where, as here, this Committee is conducting an investigation to determine whether to recommend articles of impeachment.”

“The Committee has a compelling need for the requested materials,” Letter wrote.

Some legal experts say the committee’s case would be stronger if the House voted to authorize a formal impeachment inquiry. Speaker Nancy Pelosi (D-Calif.) is opposed to beginning impeachment proceedings, arguing Democrats need to first see how their other investigations into Trump in related court cases play out.

The public version of Mueller’s report, released on April 18, redacted information pertaining to grand jury material, ongoing investigations, classified material and information about some third parties.

The committee subpoenaed Attorney General William Barr for Mueller’s full, unredacted report and underlying evidence in April, spurring a tug of war with the executive branch over the files.

The Justice Department has provided the committee some of the underlying evidence related to potential obstruction and has allowed lawmakers to view a less-redacted version of the report, which still obscures grand jury material.

But the Justice Department has declined to ask a court to release grand jury material to the committee, arguing the panel is not entitled to it because the material is subject to secrecy rules.

The Judiciary panel filed its application two days after Mueller testified publicly about his Russia investigation on Capitol Hill. He divulged little new information but confirmed key details from his report, including that the 22-month probe did not exonerate Trump on allegations of obstruction.

Mueller said he did not reach a decision either way on whether Trump obstructed justice because of the Office of Legal Counsel opinion that states a sitting president can’t be indicted.

Democrats argue Mueller’s report contains clear evidence Trump engaged in criminal wrongdoing and say it’s up to Congress to hold the president accountable for his behavior.

Trump, meanwhile, has argued Mueller’s report vindicated him of allegations of Russia “collusion” and obstruction. Barr and then-Deputy Attorney General Rod Rosenstein also judged the evidence laid out by Mueller to be insufficient to accuse Trump of obstructing justice.

Updated at 4:01 p.m.