Mueller Grand Jury Materials Could Lead to Second Impeachment

House Democrats told a federal court on Monday that they will continue impeachment investigations into President Donald Trump after the scheduled vote on articles of impeachment later this week.

In a 66-page filing with the U.S. Court of Appeals for the District of Columbia, attorneys for congressional investigators led by House General Counsel Douglas N. Letter vowed that Democrats on the Judiciary Committee would continue their impeachment inquiry into whether Trump committed obstruction of justice–regardless of the outcome of the House’s current “narrow impeachment” process premised on the president withholding military aid to the Ukraine in an apparent scheme to obtain an investigation into Joe Biden‘s son.

The Judiciary Committee’s separate impeachment investigation is based on the findings contained in the report on election interference and obstruction of justice produced by former special counsel Robert Mueller. According to Letter, Judiciary Committee Democrats are determined to obtain additional grand jury materials produced in the course of Mueller’s investigation that the Department of Justice has been just as determined to keep under judicial lock-and-key.

Per the filing, Democrats want said materials for two distinct reasons:

As the Committee recently explained, should the Committee obtain the withheld material, “it would be utilized, among other purposes, in a Senate trial on these articles of impeachment, if any.” And the Committee “has continued and will continue [its impeachment] investigations consistent with its own prior statements respecting their importance and purposes.” The withheld material could inform those investigations as well.

“The Department of Justice takes extraordinary positions in this case,” the filing notes in a separate section. “It does so to avoid disclosing grand-jury material needed for the House’s impeachment of President Trump and the Senate’s trial to remove him from office. This Court should reject DOJ’s efforts to insulate the President from Congress’s impeachment power.”

In other words, not only will impeachment proceedings likely continue based on the Mueller report, but Democrats might also attempt to use the secret Mueller grand jury materials in an effort to convince the Senate that Trump should be removed from office–but as of now, it’s not entirely clear what Mueller may have uncovered that is particularly relevant to the Ukraine affair.

The filing makes the somewhat interesting and arguably implausible claim that those materials may be “needed to evaluate President Trump’s solicitation of an announcement by Ukraine that it was launching an investigation into former Vice President Joe Biden.”

As Law&Crime previously reported, however, this is not the first time Democrats have asserted in court that those materials are important to the impeachment process. A late October filing argued:

DOJ principally argues that the [grand jury] materials the [House Judiciary] Committee seeks are not related to the House’s ongoing impeachment inquiry, which DOJ asserts “will focus narrowly on the whistleblower complaint and issues surrounding Ukraine.” DOJ is wrong about the scope of the House’s inquiry: as the Committee confirmed at oral argument, “it’s not just Ukraine that’s the focus.

Letter was previously responding to DOJ arguments that Attorney General Bill Barr‘s agency would be “irreparably harmed” if those grand jury materials were to see the light of day–an argument made after U.S. District Judge Beryl A. Howell issued a scathing 75-page order directing Barr and DOJ to release those materials with haste.

“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 said. “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 later appealed that ruling.

Barr has consistently argued that House investigators should not be privy to the grand jury materials in question because the ongoing impeachment investigations are not the type of “judicial proceeding” that would necessitate the unsealing of grand jury documents.

Judge Howell dismissed those concerns by lecturing Barr and his apparatchiks for apparently misunderstanding legal terms of art.

“DOJ relies on the definition [of “judicial proceeding”] first articulated by Judge Learned Hand in 1958,” she observed in a footnote. “DOJ’s reliance on this definition is puzzling since courts—including the D.C. Circuit—have consistently recognized that Judge Hand gave ‘judicial proceeding’ ‘a broad interpretation.’”

Letter’s Monday submission makes note of the court’s prior ruling–suggesting that additional charges on obstruction of justice are potentially in the offing. Again the filing:

First, as this Court has already held, an impeachment trial is a “judicial proceeding” for purposes of Federal Rule of Criminal Procedure 6(e). The text of the Constitution demonstrates that impeachment is a judicial function, and an array of other authority—from Supreme Court precedent to the Federalist Papers to centuries of historical practice to the decisions of this Court—confirms what the Constitution’s text makes clear. DOJ asks this Court to ignore this authority and proposes to place Congress in a worse position than every other litigant who seeks grand-jury material for use in run-of-the-mill litigation—a proposal that DOJ itself previously described as “fatuous.”

“Second, as Chief Judge Howell ruled, the Committee on the Judiciary has established the requisite particularized need for the material,” the filing continues. “The particularized-need test requires the Court to ‘balance’ the public interest in disclosure against the countervailing interest in secrecy. The balance in this case is not close.”

The full filing is available below:

Judiciary Committee Brief on Mueller Grand Jury Materials by Law&Crime on Scribd