Rule of Law

OP-ED: It’s Not Too Late for the Supreme Court to Decide the Mueller Grand Jury Case Correctly

On Thursday, the Supreme Court granted certiorari in a blockbuster case concerning whether Congress can access the full, unredacted Mueller report. Special counsel Robert Mueller released that report a little more than a year ago, but Congress still has not seen the report in its entirety because the Department of Justice has withheld portions of the report that concern grand jury matters. Now, the Supreme Court will decide whether Congress can view those grand jury redactions, as centuries of precedent dictate, or whether the Trump administration can continue to obstruct Congress’s legitimate oversight request. But just as important as what the court decides is when it decides it. The court should expedite its hearing of the case and decide it this summer. If it doesn’t, it will in effect grant President Trump a de facto win by delaying resolution of this case until after this congressional term expires in January.

The case concerns the Federal Rule of Criminal Procedure that provides that grand jury matters must generally be kept secret. Significantly, the rule in question, known as Rule 6(e), has an important exception that allows district courts to release such materials “preliminarily to or in connection with a judicial proceeding.” Citing that rule, last August, the House requested that a district court release the portions of the Mueller Report that were redacted as grand jury materials, arguing that an impeachment proceeding is a “judicial proceeding.” It has now been close to a year since that request.

As I’ve explained before, the House’s argument is supported by the text of the Constitution and a long history of Congress receiving grand jury materials. Regarding the former, the Constitution is clear that during impeachment the House functions as a grand jury and the Senate is a tribunal that decides whether to remove officers. Indeed, Article I, Section 3 of the Constitution uses the language of judicial proceedings, stating that “the Senate shall have the sole Power to try all Impeachments,” that “no Person shall be convicted without” a two-thirds majority, and that “judgment in Cases of Impeachment shall not extend further than to removal from Office.” Further, Article III, Section 2 says that “the Trial of all Crimes, except in Cases of Impeachment; shall be by Jury,” indicating that impeachment is a type of “trial” for “crimes.”

Precedent also supports the House’s request. In 1811, a grand jury in the Mississippi Territory forwarded the House of Representatives its presentment specifying charges against federal territorial Judge Harry Toulmin, which set in motion a House impeachment inquiry. More recently, during the Nixon impeachment, a district court forwarded grand jury materials regarding the Watergate investigation to the House Judiciary Committee. And the House received grand jury materials related to the impeachment of sitting federal judges in 1987 and 2010.

Notably, the Department of Justice consented to the release of grand jury materials in these earlier cases. But consistent with its pattern of obstructing legitimate congressional oversight, the Trump administration has refused to turn over the unredacted Mueller Report to Congress and has fought that disclosure for nearly a year in federal court. The administration lost in both the D.C. district court and the U.S. Court of Appeals for the District of Columbia Circuit. On Thursday, however, the Supreme Court agreed to hear this case on the merits, setting up another blockbuster fight over whether Congress can conduct legitimate oversight of this president.

The problem with the Court’s order granting the case is that it failed to say when it would hear it. And with this case, timing is everything. Typically, when the Supreme Court grants a case, it seeks further briefing, hears oral argument, and then issues a decision months later. In this case, the ordinary procedure would mean that oral argument would probably happen this fall. And that would make a final decision on the matter unlikely before 2021.

But if the court subscribes to that ordinary procedure in this case, it would result in a de facto win for the Trump administration even if the court eventually decides that Congress is right on the law. As I’ve explained before, the House is not a continuing body, and the current Congress exists only until January 3, 2021, at which point its on-going investigations will end, its subpoenas will expire, and a new Congress will be sworn in. Thus, if the case is not argued until the fall and not decided until spring 2021, the election will be over and the 116th Congress will have long since adjourned. Congress needs to see the full Mueller Report now—during this congressional term—to decide if it contains evidence of impeachable conduct. In short, if the Supreme Court does not decide this case in a timely manner, there is a real risk that even if Congress should have access to these grand jury materials, Trump will manage to run out the clock and delay any decision until it is too late.

Thankfully, there is precedent for the court hearing important cases like this on an expedited timeline, even during its typical summer vacation. In United States v. Nixon, for example, a case about a president’s compliance with subpoenas, the court heard argument on July 8, 1974, and decided the case just two weeks later on July 24, all during its summer break. Bush v. Gore is another good example of expedition. The Supreme Court decided two cases arising out of the Florida recount in the 2000 election in roughly three weeks between Thanksgiving and Christmas of that year. In short, the court can act quickly when it wants to.

Finally, expedition is especially warranted here given that there is no reason this case can’t be heard on an expedited basis. Indeed, the parties have briefed this issue twice already in the lower courts, so they could easily file briefs before the Supreme Court on an expedited basis. The justices may be used to taking the summers largely off, but for an issue as important as this one—whether Congress can complete a major investigation of foreign interference in the 2016 election and President Trump’s efforts to obstruct the Mueller investigation—vacations can wait. To ensure that President Trump does not remain above the law, and that Congress can complete its legitimate investigation in a timely fashion, the court should hear this case this summer and decide it expeditiously.

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