Appeals Court Emergency Stay Blocking Order to Turn Over Mueller Investigation Grand Jury Material to House is Short-Lived

FILE - In this Sept. 4, 2013, file photo, then-incoming FBI Director James Comey talks with outgoing FBI Director Robert Mueller before Comey was officially sworn in at the Justice Department in Washington. On May 17, 2017, the Justice Department said it is appointing Mueller as special counsel to oversee investigation into Russian interference in the 2016 presidential election. (AP Photo/Susan Walsh, File)

FILE – In this Sept. 4, 2013, file photo, then-incoming FBI Director James Comey talks with outgoing FBI Director Robert Mueller before Comey was officially sworn in at the Justice Department in Washington. On May 17, 2017, the Justice Department said it is appointing Mueller as special counsel to oversee investigation into Russian interference in the 2016 presidential election. (AP Photo/Susan Walsh, File)

 

In July, House Democrats filed a lawsuit to obtain the secret grand jury material which had been redacted from Special Counsel Robert Mueller’s report. Last week, U.S. District Court Judge Beryl Howell, an Obama appointee, granted their request. In her memorandum opinion, Howell wrote:

The Speaker of the House has announced an official impeachment inquiry…

The White House’s stated policy of non-cooperation with the impeachment inquiry weighs heavily in favor of disclosure. Congress’s need to access grand jury material relevant to potential impeachable conduct by a President is heightened when the Executive Branch willfully obstructs channels for accessing other relevant evidence.

Howell ordered the DOJ to turn over the documents by October 30th.

In a court filing submitted to Judge Howell, the general counsel of the House of Representatives, Douglas Letter, wrote that the DOJ had been stalling in an effort to drag out the impeachment inquiry. He argued:

Every day that the Committee is without the redacted information undercuts the Committee’s ability to determine whether to impeach the President.

Delay in this case would not only hinder the House’s ability to consider impeachment quickly, but also enhance DOJ’s ability to run out the clock on the Committee’s impeachment inquiry altogether. … That would further undermine the public interest.

On Tuesday night, a three-judge panel from the Circuit Court of Appeals issued an emergency stay to block Howell’s order. The judges, all Obama appointees, included Patricia Millett, Cornelia Pillard and Robert Wilkins.

Unfortunately for President Trump, this victory was short-lived. On Wednesday, Judge Howell blocked the emergency stay.

Politico’s legal affairs reporter, Josh Gorestein, tweeted, “Stay denied. But DC Circuit has a temporary hold in place.”

Politico reports that the Trump administration has appealed Howell’s ruling and has asked her to lift the Wednesday deadline. DOJ lawyers argued that the Mueller investigation is “peripheral” to the impeachment inquiry.

House lawyers insist the Mueller investigation documents are “relevant.” In their filing, they wrote, “DOJ is wrong about the scope of the House’s inquiry. As the Speaker and the undersigned counsel have confirmed, the Committee’s investigation is part of the House’s impeachment inquiry.”

According to Politico:

Howell had not ruled on the stay request by the time the appeals court issued its order Tuesday, but she weighed in later in the evening, declining to put her decision on hold.

The judge said the Justice Department’s arguments suffered from “serious infirmities.” She also described as “minimal” the agency’s chance of prevailing in its appeal.

Howell, also an Obama appointee, rejected the Justice Department’s position that turning the grand jury information over to the House risked its immediate release.

“A disclosure of grand jury material made under the October 25 Order that is found to be erroneous, can be clawed back,” the judge wrote, citing House procedures that dictate the information be kept confidential — at least for now.

What we need right about now is an indictment from John Durham. Actually, the IG’s FISA report will do.