A Second Impeachment? D.C. Circuit Orders Justice To Turn Over Mueller Grand Jury Material To Congress

The D.C. Circuit has ruled that Justice Department must turn over grand jury (Rule 6e) material to Congress — affirming a lower court in ruling against the Trump Administration. What was most interesting about the decision was the overriding necessity: to allow the House to decide if it needs to impeach President Donald Trump for a second time.

Since I represented the Rocky Flats Grand Jury in the 1990s, I have been an advocate for a broad reading of Rule 6e. This decision represents an important reaffirmation of an exception to grand jury secrecy. The panel ruled 2-1 that not only is impeachment a “judicial proceeding” for the purposes of disclosure of evidence. The court ruled that “The constitutional text confirms that a Senate impeachment trial is a judicial proceeding” and that “[t]he term ‘judicial proceeding’ has long and repeatedly been interpreted broadly.” However, that still required that the demand for the evidence be related to an ongoing and legitimate proceeding. 

In her decision, U.S. Circuit Judge Judith Rogers(joined by Judge Thomas Griffith) dismissed objections that the Senate trial is over and a second impeachment unlikely: “The courts cannot tell the House how to conduct its impeachment investigation or what lines of inquiry to pursue, or how to prosecute its case before the Senate.” 

In her decision, Judge Neomi Rao raised a compelling objection that, given the conclusion of the Senate trial, the panel should at least remand to the district court to consider the current legitimacy of the request:

Yet, in the months following the Committee’s initial petition, the House passed two articles of impeachment and the Senate conducted an impeachment trial and voted to acquit President Donald J. Trump. In light of these circumstances, I would remand to the district court to consider in the first instance whether the Committee can continue to demonstrate that its inquiry is preliminary to an impeachment proceeding and that it has a “particularized need” for disclosure of the grand jury records.

Rao was in agreement on critical parts of the decision but objected that the panel was ignoring the changed circumstances and the need for a factual record:

A reasonable observer might wonder why we are deciding this case at this time. After all, the Committee sought these materials preliminary to an impeachment proceeding and theSenate impeachment trial has concluded. Why is this controversy not moot? The majority simply turns a blind eye to these very public events and the parties have not submitted any additional briefs; however, a few observations are worth noting. Mootness is a constitutional doctrine following from the Article III requirement that courts decide only live cases and controversies. See Conservation Force, Inc. v. Jewell, 733F.3d 1200, 1204 (D.C. Cir. 2013). Mootness, however, does not impact the district court’s authorization of disclosure because authorization is a discretionary action under Rule6(e) — it is part of the non-Article III supervisory power of the court over the grand jury. With that said, while mootness per se does not apply, the changed circumstances require remand for the reasons already stated. 

The panel makes a strong, if not overwhelming, case for treating the impeachment as a judicial proceeding for the purposes of the exception to grand jury secrecy. However, this ruling could be reversed on the issue of the failure to remand for the trial court to review the matter in light of the completion of the Senate trial.

Here is the opinion: In Re Application Of The Committee Of The Judiciary

51 thoughts on “A Second Impeachment? D.C. Circuit Orders Justice To Turn Over Mueller Grand Jury Material To Congress”

  1. Excellent! Very pleasing to observe the klown posse twiddling here is still clueless. I regret to inform all the rubes, dupes, klan wannabes, pocket-traitors and grifters on the make who are still bamboozled by the antics of the day glo bozo that the ticking sound you hear is definitely getting louder.

    this is to all the “nab-durnit! that ticking sound is a-gitten louder, by golly” deplorables

  2. sure seems plenty moot to me but what do i know.
    i actually get paid to fight real cases and controversies rather than political ones.

  3. It’ll be appealed to the Supreme Court and they’ll overturn it. Besides, if you actually read the report and note what is redacted, you’ll see that it’s to protect personal privacy and because of impending cases (namely, Roger Stone.)

  4. It’s more and more a clear cut dividing line between Citizens of a Constitutional Republic and at best former citizens of a foreign ideology. Some unfortunately are holding public offices. But as far as getting along with these enemies domestic I instead call on the Constitutionally approved answer. Have our military uphold their oath of office to preserve, protect, and defend Our Constitutional Government. Starting with the rejection and ejection of Comrades Schumer and Pelosi.

    That is a strict Constitutional Centrist and objectivist point of view of a loyal citizen.

    At present DNC can’t survive without reforming without the more than tarnished and completely unacceptable oath breakers of the socialist left wing extremists regardless of what name or what line of Bullshevikism they are spouting. .

    1. Haha. As if. Read the Constitution; but, thanks for checking in from whatever “reality” you inhabit.

      this is to “doesn’t it say somewhere that I get to vet everyone’s political persuasion?” mikey

  5. The Senate Trial Was A Sham

    Mitch McConnell, and other GOP Senators, told the public upfront that Trump would be acquitted. GOP Senators were never inclined to even consider the evidence. Since then D.C. Federal Circuit Judge Reggie Walton has ruled that Attorney General Barr quite possibly acted with willful deceit in misrepresenting the Mueller Report.

    Congress might yet get a chance to see the hundreds of redactions Barr blackened from the Mueller Report. What Congress discovers could make a mockery of the Senate’s aquittal. As for Trump, the Coronavirus has revealed him as the narcissistic ignoramus he has always been. Trump’s blundering response has no doubt contributed to recessionary fears. One must pause here to note that presidential incumbents are never reelected in recessionary climates.

    1. The Senate Trial Was A Sham

      Well, the complaint was a sham. Why should you be given better?

    2. Just a note of correction, Barr didn’t redact anything. The redactions were done by career doj officials, intelligence agencies, and the Mueller team. The point is congress has no reason to see the documents.

      Trump was acquitted because he did not commit a crime. There was no evidence that he committed a crime, and frankly, he wasn’t even accused of committing a crime. The entire impeachment* was kabuki theater to appease the fringe left. had it been serious Pelosi would have done it in a matter that was legitimate.

      You left much to unpack in your little rant. As for the coronavirus response, your thoughts look silly as compared to the low number of cases in the US due to the administration’s well thought out plan that was enacted months earlier. The panic has been caused by a media overreaction that has angered just about everyone in the country.

      Trying to turn this virus into a political event is silly as the market reactions are unrelated to the president. The fact is he has presided over a booming economy due to his policies that will continue as this flu inevitably passes. Pause and think of that for a moment before calling someone else an ignoramus.

      1. Wyatt, what ‘well thought out plan’ did Trump have for the virus?? Almost no one outside rightwing media thinks there was any plan whatsoever. Trump kept blaming ‘Deep State’ while telling people to buy stocks. The comparisons to Nero’s fiddling have been comically widespread.

        1. I respectfully request any progressive qualify/quantify anything Trump has said or done about the “Chinese Wuhan Virus,” then compare that to the MSM who now label anyone “RASCIST” who mentions this virus came from China?

          How, exactly and specifically is someone “racist” for stating a scientific fact Re. the national origin of a deadly virus? A friend wants to know.

          1. then compare that to the MSM who now label anyone “RASCIST” who mentions this virus came from China?
            __________________________________________
            I heard on Alex Jones that the virus was made in a North Carolina lab and sold to a lab in Wuhan China.

    3. “What Congress discovers could make a mockery of the Senate’s acquittal. [sic]”

      Or, on the other hand, what congress discovers could make a mockery of the house’s impeachment.

    4. you better hope Trump is not what you say. it will stink even worse if you turn out to be wrong. his order to end travel from europe just now is a good move and a lot of other things he ordered are on the right track.

      it’s true he downpedalled it, that was a fumble. i think that he’s picked up the ball now. i sure hope so.

      whether he is responding optimally or not, it’s going to get a lot lot worse and stay that way a while before it gets better. a different president won’t bring relief anyways, just containment and eventually a vaccine.

    5. … as compare with the stellar legal precedence established by the House Judiciary … err House Intelligence Comittee?

    1. It seems clear that the two “judges” were given a heads up at a Georgetown cocktail party that a second Impeachment was going to happen.

  6. The only reason the impeachment is over is because Republicans decided to deny the American people full consideration of the crimes of Donald Trump, and they fast-tracked a vote without any witnesses or documentary evidence. They likely had this case in mind, hoping that the court wouldn’t rule on the grounds of mootness. Clearly, the matter is not moot, and McConnell’s shenanigans won’t work.

    1. The reason it’s over is that there were no crimes and the Republican majority was not willing to pretend there were.

    2. Hey gNatachahahahahaha,
      How’s that “Trump lives inside my brain rent free” thing working out for you?? Are you leaving the USA when he gets reelected??

      1. Dream on. She’s staying put, of course. We always get so excited as the Hollywood elite celebrity dum dums annoucne to the world they are leaving the country IF Trump gets elected and then?? they don’t leave! Even Prince Harry’s C-List actress social climbing wife has said publicly that they will not live in the United States as long as Trump is president. Promise?? That comment alone has made me want to smack that little social climber who snagged Prince Harry and got him to give up everything to follow her around. I thought the Royal family were supposed to remain apolitical?

        1. What he gave up was his career in the military. He did that several years before he met Meghan Markle.

    3. That is silly pundtry-Schiff speak. The Dems fasttracked it through the house and said it was urgent to get it done quickly then sat on it for weeks. They could have supoenaed the witnesses they wanted there. They also could have allowed The other side to call witnesses but in fact only allowed ones they themselves wanted.
      The Senate treated it much better than the farcical travesty it was.

    4. All the witnesses are called upon and questioned by the CONGRESS of the united states . The trial is held in the SENATE . If you have questions just try bringing in new witnesses into a trial not on the witness list .

    5. !7 witnesses and 20,000 pages of documents, were examined during the House impeachment inquiry, and put into the record, for the Senate trial. It was the fault of the House for failing to bring together any substantive evidence that amounted to an impeachable crime. Donald Trump committed no crimes with the evidence presented. Pelosi had nothing and expected the Senate to do her job, which they refused to do because what she presented as crimes and evidence, were neither. Ridiculous. Presidents are allowed almost unlimited authority in Foreign policy from their Article 2 powers. Presidents have murdered, started wars, tortured, launched cruise missiles in countries we were not a war with, executed an American with a HellFire missile launched from a drone over Yemen, and bribed the Iranians with $150 billion and an unauthorized treaty without approval. So like I said and the Constitution agrees, that Presidents have all authority in foreign policy without any prescribed upper limit by understanding what prior Presidents have done.

      1. Presidents have murdered, started wars, tortured, launched cruise missiles in countries we were not a war with,executed an American with a HellFire missile launched from a drone over Yemen
        _____________________________________________

        Those are all criminal acts that warrant impeachment. but of course the presidents (including Trump) will never be charged or impeached for the many real crimes they commit.

        You can add the premeditated murder of Soleimani and the Iraqi soldiers that were escorting him to the list of impeachable crimes committed by presidents.

        What further evidence do you need that Trump has the full support of the deep state swamp? They will support and condone all his criminal acts and they will make sure that Trump gets reelected. The deep state swamp will go as far as phony investigations and phony impeachments that produce nothing but hot air to help Trump continue as president for another 4 years.

        1. You can add the premeditated murder of Soleimani and the Iraqi soldiers that were escorting him to the list of impeachable crimes committed by presidents.

          Just more jinnism. Is there no other site you can go to mourn your loss?

          Believing Jinn would be just as good as angels or as good as human believers. The unbelieving Jinn, however, are the ones that we usually refer to as Satan and also a term that appears in the Quran about the first of those unbelieving Jinn, Iblis. When we use Satan or Iblis we are talking particularly about the first Satan, the one who tempted Adam and Eve in Paradise. Now, the league of Satan, his descendants, and helpers until today are called Satans or devils.
          https://www.whyislam.org/on-faith/jinn/

  7. Judicial proceedings have a due process requirement.

    There was absolutely no due process in the house impeachment proceedings.

    It was not a “judicial proceeding” – it was a soviet style star chamber.

    Regardless, as a prior DC judge found, The rules on GJ material are set by congress, congress can change them.

    We should not “read the law broadly” probably ever, but certainly not when the law can be changed.

    Beyond that Horrowitz’s findings undermine – if not completely delegitimize the entie Mueller investigation.

    How can you have a legitimate grand jury, when you no longer have reasonable suspicion of a crime ?

    Further this is an extremely bad decision just from a policy perspective.

    The White House fully cooperated with Mueller. They did not challenge any subpeonas or requests, They did not assert executive priviledge – even when that priviledge was obviously present.

    This ruling will encourage future presidents to refuse to cooperate with Special Counsel’s.

    This ruling is “make the rules up as we go along” nonsense.

    Further isn’t Griffith the idiot who is attacking Barr in an FOIA case ?
    It is not in the courts powers to make decisions for prosecutors.
    Even more in the FOIA case Griffith (like Jackson) is another of these idiot judges who refuses to accept what has been absolutely established – that the Trump Campaign did not engage in Russian collusion.

    Griffith and Jackson have repeatedly been making decisions citing as true assertions that have been repeatedly disproven regarding matters that are NOT before that court.

    1. How can you have a legitimate grand jury, when you no longer have reasonable suspicion of a crime?

      John,
      Doesn’t it seem as though fruit is still being picked from the poisonous tree? Horrowitz exposed the existence of the tree, but it will probably take Durham’s investigation to put a frame around it.

    2. These Congressional proceedings are specifically defined as non-judicial with each Chamber writing their own rules to go with their proceeding. So I am clueless as to what this whole essay is about. The rules are that the Chief Justice will preside over the Senate trial, and even Roberts couldn’t obey that simple rule when he refused to read Rand Paul’s question about the friend of the supposed whistleblower, whom was key to the whole impeachment drama. Non-judicial???

  8. Rogers is a Bill Clinton hanger-on, a political hack, old war horse who needs to be sent to the glue factor. Judges like her are a disgrace to the nation.

    According to Wiki:

    Judith W. Rogers
    Born July 27, 1939 (age 80)

    Rogers was nominated by President Bill Clinton on November 17, 1993, to a seat on the United States Court of Appeals for the District of Columbia Circuit vacated by Judge Clarence Thomas.

    In February 2020, Roger dissented when the majority held that the United States House Committee on the Judiciary could not enforce a subpoena upon President Trump’s former White House Counsel, Don McGahn.

  9. “DC appeals court judge to retire, handing Trump key vacancy”
    March 5, 2020

    https://thehill.com/regulation/court-battles/486178-dc-appeals-court-judge-to-retire-handing-trump-key-vacancy

    Judge Thomas Griffith on Thursday announced plans to retire from the U.S. Court of Appeals for the D.C. Circuit, handing President Trump his third vacancy on the influential bench.

    Griffith is set to retire in September, just two months ahead of the 2020 election, as politics intensify the focus on Trump’s conservative makeover of the federal courts.

    The judge, a George W. Bush appointee and 15-year veteran of the D.C. Circuit, made headlines last week when he ruled against House Democratic lawmakers who sought to enforce a subpoena against a former Trump aide.

    In a 2-1 opinion, Griffith ruled that courts were powerless to intervene in a House lawsuit to compel testimony from former White House counsel Don McGahn over Trump’s objections. If his ruling stands, it would establish a favorable precedent for future White House efforts to avoid congressional oversight.

    However, Griffith also cast a vote against Trump when the president asked the court to reconsider a ruling that paved the way for Democrats to obtain his financial records.

    The 65-year-old judge’s pending departure will mark the third vacancy for Trump to fill on the D.C. Circuit, which is sometimes referred to as “the second most important court” after the U.S. Supreme Court — where a disproportionate number of D.C. Circuit judges eventually land.

  10. Dems won’t impeach again this term. They know Mitch is forever locked in to the home job trial. If Trump wins, and the Senate goes Dem, this decision informs that effort.

    It seems though ‘impeachment’ is actually set for November, this year.

    1. If the Dems take another run at it, isn’t that saying Nadler, Schiff and Pelosi were NOT READY the first time…as so many tried to tell them? If at first you don’t succeed, your chances of success are better doing ANYTHING ELSE. Dumba$$ Dems!

      1. Actually, no it doesn’t. It says the McConnell Senate is corrupt.

        By your logic there’s no reason to try anything again. Ever. The ever shifting Repub position during the Senate trial ended up accepting the facts of the case but electing to take no action after denying witnesses and whining about process. Basically proving that no case was going to work as long as it was sent over by the Dem House.

        Could the House have waited longer? Sure. Clearly there is no limit to the amount of slime and corruption and impeachable behavior of this crime scene in a porta potty of an administration.

  11. Well, the Democrats have to have something to fill up the news cycle since they are going to be cocooning Obiden to downplay his senility.

    Speaking of which, what kind of frigging idiot would vote for somebody who is rapidly becoming senile to be President??? Blacks, I can understand. Because Democrats are gonna feed their babies, but why anybody else with a functioning brain???

    Squeeky Fromm
    Girl Reporter

    1. “What kind of frigging idiot would vote for …..” Two Reasons Squeeky – 1) The party & their political MSM hacks said they needed someone who could “beat” POTUS and 2) if he did win (and for that to happen, hell would have to freeze over right this very minute), shortly thereafter Obiden would be declared mentally unfit, and Kilarey who they told him would be his VP would step right up and plunk her well-carpeted body in the Oval Office.

    2. Blacks, I can understand. Because Democrats are gonna feed their babies,

      Has next-to-nothing to do with that. Every stratum of black American society votes Democratic. Those on the dole and those not on the dole. Wage earners of every stripe. Salaried employees of every stripe. Public sector employees and private sector employees. Blacks voted Democratic during the period running from 1932 to 1960 as well (like other urban ethnics, with a 7/3 margin, not a 10/1 margin), at a time when AFDC was a tiny program and Medicaid, SNAP / Food Stamps, and Section 8 vouchers did not exist.

      1. and you know this because……?

        this from the most bitter of all commenters who lobs sulfuric bombs at groups, and in doing so rivals the leaders that employ identity politics

        you’re a piece of work

  12. IIRC, the word count of the withheld material consisted of 2% of the total. I doubt there will be a 2d impeachment trial. I don’t doubt that the Schiff / Nadler staff will leak carefully framed bits to their media auxilliary to provide fodder for smear stories and leak other bits to Antifa so you’ll see harassment and violence against inconvenient witnesses in key jurisdictions.

    Eventually the Democrats are going to throw one toggle switch too many. They’re not going to like what happens next.

  13. Here’s hoping for another impeachment roll out. Trump’s favorables will then hit 60%. Hey maybe they could do one every six months. Pelosi drives a clown car and thinks it’s a Bentley. Poor old broad.

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