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