Things went well in court today for the House, which wants the Mueller grand jury materials for its impeachment inquiry

Two Republican appointees to the D.C. Court of Appeals suggested today that courts lack jurisdiction to decide questions about grand jury materials.

(One of the judges — Griffith — is a George W Bush appointee; the other — Rao — is a Trump appointee.) 1/18

Judges suggest court shouldn’t solve dispute over Mueller’s evidenceDemocrats want access to the secret grand jury information Robert Mueller relied on during his Russia probe.

The House lawyers showed in court that the matter is urgent, and that the grand jury materials were directly and materially relevant to its impeachment inquiry. 2/18

The precedent that Neomi Rao cited (US v Nixon, 1993) is completely off point. In that litigation, the courts held only that it was a non-justiciable matter whether the Senate had properly conducted an impeachment trial of a federal judge. 3/18

Nixon v. United States, 506 U.S. 224 (1993)The political question doctrine is triggered when the text of the Constitution has shown that an issue lies outside the scope of the courts, or there is no judicial standard for resolving the issue.

US v Nixon certainly does not stand for the proposition that the courts lack jurisdiction to decide whether the DOJ must hand over grand jury materials in an impeachment inquiry! This for two reasons: 4/18

First, there are clear precedents that Congress has a constitutional right to obtain such materials; and second, grand jury materials are court documents, not DOJ documents. 5/18

Grand juries are impaneled and are supervised by courts. The grand jury materials that are produced are the property of the courts. At the conclusion of a grand jury, the grand jury materials are turned over to the DOJ (and eventually to the National Archives), 6/18

but they never become the legal property of the DOJ. (The DOJ is only the custodian.) A federal court that wants the materials can obtain them simply by ordering their release from either the DOJ or the National Archives, and the DOJ must comply. 7/18

So the House isn’t asking the DOJ to hand over the documents. The issue is a request by the House *to the courts* for grand jury materials (such requests have always been granted to Congress by courts in the past), and this has now been challenged by the DOJ. 8/18

Even the DOJ seems to have been taken aback by the sweeping and wholly unprecedented nature of Rao’s suggestion (which was then seconded by Griffith, who thought it was an “interesting question,” which it isn’t: 9/18

The DOJ had its own (also specious) reasons for denying the House’s application for a court order authorizing the release of the Mueller grand jury materials, 10/18

but both Bill Barr’s DOJ and Rao (and perhaps Griffith) are trying to find a way to promote an authoritarian presidency that would be insulated even against effective and efficient impeachment inquiries. 11/18

The disposition of the case strongly favors the House, because Rao’s idea is preposterous (even Griffith will realize this), and because, as Griffith himself noted, the DOJ’s position is contradicted by a Watergate era ruling
of the same appeals court (D.C. Circuit). 12/18

As Griffith said: “It would be extraordinary for us” to defy that ruling, noting that three-judge panels are required to adhere to the appeals court’s prior rulings. “I don’t think that would last very long.” 13/18

In other words, a ruling supporting the DOJ wouldn’t even survive en banc review. 14/18

No matter how the case is decided by the DC Circuit Court of Appeals, we can expect that the case will be appealed and decided by SCOTUS, either by denial of cert (in the event the House prevails at the appeals court) or by a decision 15/18

which will almost certainly strike down the DOJ’s challenge — because of Chief Justice John Roberts, if for no other reason, 16/18

because Stevens, who is sensitive to legal precedents (and the political dimensions of court cases) will not vote to overturn the clear precedents or deny the courts jurisdiction over a legal matter concerning grand juries! 17/18

Unfortunately, though, this litigation is eating up valuable time, and as the House argued in court today, the matter is urgent. 18/18

Correction: It’s Nixon v. United States, 506 U.S. 224 (1993), not US v Nixon!

The Resistance. Vote Blue: True Blue American. We look forward, they look back. We’re progressive, they’re regressive. @twoodiac