Democrats on the House Judiciary Committee plan on using secret and as-yet-unreleased grand jury materials produced by former special counsel Robert Mueller during the eventual Senate trial on President Donald Trump‘s impeachment.
In a 30-page supplemental briefing filed with the U.S. Court of Appeals for the District of Columbia on Monday, congressional Democrats addressed recent claims by the Department of Justice that their application for the secret Mueller grand jury documents is moot due to the impeachment of Trump late last week.
“The House’s impeachment of President Trump does not moot this case,” the filing argues. “To the contrary, the current status of the impeachment proceedings underscores the continuing controversy regarding the withheld grand-jury material, and increases the need for this Court to rule expeditiously.”
House Democrats told the court that they are still continuing their investigation into the 45th president’s already-impeached-for behavior and for additional potential criminal conduct.
The filing goes on:
[T]he Committee continues to seek the withheld material for use in impeachment—both because the material bears on the current Articles of Impeachment and could accordingly be used in a Senate trial on those Articles, and because the Committee is continuing to conduct its inquiry into whether the President committed other impeachable offenses. Expedited consideration of DOJ’s appeal is now even more essential to prevent the Trump Administration from obstructing Congress in its efforts to obtain the information it needs to carry out its constitutional responsibilities.
“To inform its ongoing investigations of President Trump’s offenses, the Committee seeks grand-jury material in and underlying the Mueller Report,” the filing explains later on, noting that their “principal brief” filed earlier this month laid out the case for using those materials to their full potential.
“[T]his material pertains to misconduct central to the impeachment proceedings—including President Trump’s solicitation of Ukraine’s interference in the 2020 Presidential election, and his pattern of soliciting foreign election interference and obstructing government investigations of his misconduct,” the filing goes on. “The withholding of that material injures the Committee.”
As Law&Crime previously reported, House Democrats may attempt to push forward with a second round of impeachment depending on the findings of their investigation into Mueller’s grand jury materials.
“[T]he Committee ‘has continued and will continue [its impeachment] investigations consistent with its own prior statements respecting their importance and purposes,'” Democrats argued earlier this month. “The withheld material could inform those investigations as well.”
The DOJ has largely relied on procedural arguments in an attempt to block House Democrats from obtaining those grand jury materials–arguing that Congress no longer needs those materials because Trump’s historic impeachment rendered the document request moot. The Monday filing railed against the audacity of that somewhat novel argument.
“Preventing the Committee from obtaining information that it needs in an impeachment, but that could be sought by any other litigant, would obviously interfere with Congress’s impeachment power,” the filing notes. “At a minimum, serious constitutional concerns would arise if Congress were barred from obtaining information it needs to decide whether to impeach the President and remove him from office.”
“The withheld grand-jury materials would inform the House’s decision-making regarding the presentation of the Articles and evidence to the Senate,” the filing goes on. “As the Committee’s impeachment report explains, the withheld grand-jury material ‘would be utilized, among other purposes, in a Senate trial on these articles of impeachment.’”
The filing also addresses the mootness claim directly:
The Committee’s investigations did not cease with the House’s recent impeachment vote. To the contrary, the Committee “has continued and will continue those investigations consistent with its own prior statements respecting their importance and purposes.” The withheld material remains central to the Committee’s ongoing inquiry into the President’s conduct.
“If this material reveals new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles adopted by the House, the Committee will proceed accordingly—including, if necessary, by considering whether to recommend new articles of impeachment,” the filing continues. “The Committee’s interest in obtaining the withheld material pursuant to its ongoing impeachment investigations plainly suffices to preserve a live case or controversy.”
The Monday filing further clarified what exactly Democrats are looking for in those currently withheld materials:
[T]he withheld Rule 6(e) material bears on the President’s solicitation of interference by Ukraine in the 2020 U.S. Presidential election. Specifically, one redacted passage in the Mueller Report regarding Paul Manafort relates to the false theory that Ukraine rather than Russia was responsible for interfering in the 2016 election. That is the same false theory that President Trump pressured the government of Ukraine to investigate—including by withholding vital military aid and an Oval Office meeting—and that President Trump believed would help him in the 2020 election.
“With respect to the second Article on obstruction of Congress,” the filing goes on, “the withheld material bears on whether President Trump obstructed Special Counsel Mueller’s investigation into Russian interference in the 2016 election by, among other things, misrepresenting his knowledge of that interference in his responses to questions from the Special Counsel’s Office.”
A filing from November explains why the public version of the Mueller report is insufficient for the House’s investigatory purposes:
The public report contains numerous redactions, including redactions made under Rule 6(e) to protect the secrecy of grand-jury materials from the Special Counsel’s investigation. These Rule 6(e) redactions—more than 240 in Volume I alone—withhold information about contacts between the Trump Campaign and Russian officials or WikiLeaks, and therefore may bear on whether the President committed impeachable offenses by obstructing the Special Counsel’s investigation into those activities. One Rule 6(e) redaction, for example, appears to relate to grand-jury evidence indicating that President Trump sought or obtained advance knowledge of WikiLeaks’s plans during the campaign possibly contradicting written answers he provided to the Special Counsel.
U.S. District Judge Beryl A. Howell previously issued a 75-page order directing Barr and DOJ to release the long sought-after grand jury materials.
“To insure most effectively against being misled, [the Judiciary Committee] must have access to all essential pieces of testimony by witnesses, including testimony given under oath to the grand jury,” Howell wrote. “Additionally, for purposes of assessing and following up on the Mueller Report’s conclusions, the full Report is needed: the grand jury material may offer unique insights, insights not contained in the rest of the Report, congressional testimony, or FBI-302 reports.”
The Trump administration has repeatedly appealed that ruling. Democrats are currently requesting that Howell’s order simply be enforced.
Oral arguments before the D.C. Court of Appeals are scheduled for January 20, 2020.
Read the full Monday filing below:
[image via SAUL LOEB/AFP/Getty Images]