Opposition - To.application. 19a1035
Opposition - To.application. 19a1035
19A1035
IN THE
Supreme Court of the United States
_______________
UNITED STATES DEPARTMENT OF JUSTICE,
Applicant,
v.
STATEMENT ................................................................................................................. 3
ARGUMENT .................................................................................................................. 9
I. This Court Should Deny A Stay Of The Mandate Pending Certiorari ............. 9
CONCLUSION............................................................................................................. 31
OPPOSITION TO APPLICATION FOR A STAY OF MANDATE
The Department of Justice does not meet the standard for a stay of the
mandate pending disposition of its petition for a writ of certiorari, and its
application for a stay should therefore be denied. At bottom, DOJ has failed to
This case involves the correctness of an order by Chief Judge Howell (based
the Judiciary of a limited set of grand-jury materials for use in the Committee’s
appeals affirming that district court order is unanimous on the question DOJ plans
to bring before this Court: whether an impeachment trial in the Senate is a “judicial
Federal Rule of Criminal Procedure 6(e). There is no conflict with any decision of
this Court; there is no conflict among the circuits; and the sole question at issue
likely will arise only rarely. DOJ’s forthcoming certiorari petition therefore will be
merely a call for error correction, which is generally not a basis for review by this
Court. And the correction that DOJ seeks does not warrant plenary consideration
amendment.
In any event, the decision below was plainly correct to reject the newly
developed position that DOJ has advocated here, after decades of taking the
opposite view that Congress can indeed legally obtain grand-jury materials in
here is far outweighed by the harm to the Committee and the public from further
delay. The grand-jury material to be disclosed does not belong to DOJ, and the
procedures—which both the district court and the court of appeals found
sufficient—to protect the confidentiality of the material. And, tellingly, DOJ makes
By contrast, the Committee and the public continue to suffer grave and
irreparable injury each additional day the district court’s order is prevented from
going into effect: the Committee is being deprived of the information it needs to
this information from DOJ more than a year ago. The district court issued its
disclosure order more than six months ago. If DOJ’s request for a stay is granted,
DOJ need not file its certiorari petition until August 2020,1 and therefore this Court
likely would not determine whether to grant or deny that petition until at least
October 2020. This substantial delay will seriously endanger the Committee’s
2
This Court accordingly should deny the stay. If it does not, the Committee
requests that the Court condition any stay on a requirement that DOJ file its
certiorari petition by June 1, 2020, to ensure that this Court will be positioned to
STATEMENT
This case concerns a district court order under Federal Rule of Criminal
foreign interference in the American electoral process. Id. In May 2017, the Acting
Campaign [had] coordinat[ed] with the Russian government,” id., and investigate
other matters “aris[ing] directly from the investigation,” including whether the
produced a Report describing his findings. Among other things, the Report
concluded that President Trump’s conduct raised serious questions “about whether
3
he had obstructed justice” by attempting to impede the federal investigation into
Russian interference in the 2016 election. Id., Vol. II at 1. But the Report stopped
criminal law, given that a DOJ Office of Legal Counsel opinion provides that “a
sitting President may not be prosecuted” and because Special Counsel Mueller did
and to the public in April 2019. That version of the Mueller Report contains
Procedure 6(e) to protect the secrecy of grand-jury material. These redactions bear
and Special Counsel’s investigation into Russian interference in the 2016 election
and his possible motivations for doing so. See, e.g., id., Vol. I at 85, 93-94, 98, 100-
02, 110, 111-12; C.A. App. 726-29 (redacted DOJ declaration describing the redacted
Congress, but declined a series of requests from the Committee for the redacted
Mueller Report and certain grand-jury material underlying those redactions. DOJ
4
certain staff to confidentially review all of the redacted material except what DOJ
Although DOJ had long taken the position that Rule 6(e)’s provision
this matter and for the first time asserted that Rule 6(e) forbids disclosure to the
file an application under Rule 6(e) to obtain the withheld material. See H. Res. 430,
116th Cong. (2019). On July 26, 2019, Chairman Nadler issued protocols to protect
the confidentiality of any grand-jury material obtained. See C.A. App. 122-23.
These protocols, which are similar to those used to protect grand-jury and other
and provide that such material may not be publicly disclosed absent a majority vote
3. In July 2019, the Committee filed an application with the Chief Judge of
the district court pursuant to Rule 6(e)(3)(E)(i), which permits courts to disclose
material: (1) portions of the Mueller Report redacted under Rule 6(e); (2) any
5
(3) any underlying grand-jury testimony and exhibits that relate directly to certain
individuals and events described in the Mueller Report. See App. 91a-92a.
On October 25, 2019, the district court granted the Committee’s application
as to the first two categories. App. 151a-52a. The district court first concluded that
That conclusion was required by “binding D.C. Circuit precedent,” App. 112a, and
confirmed by “historical practice, the Federalist Papers, the text of the Constitution,
The district court also found that the Committee established the requisite
“particularized need” for the first two categories of requested material, weighing the
Committee’s need for the withheld material against the interests in grand-jury
secrecy under this Court’s test in Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211,
218-23 (1979). See App. 137a-49a. The district court found that the Committee’s
“especially particularized and compelling” need for the material in its impeachment
were diminished once “the Special Counsel’s investigation, and attendant grand
jury work, concluded,” App. 146a. It therefore ordered a “focused and staged
App. 149a.
6
4. The court of appeals granted an administrative stay of the district court’s
order, App. 160a, which remained in place through expedited proceedings on the
merits, culminating in the court of appeals ruling affirming the district court on
While DOJ’s appeal was pending, the House adopted two Articles of
scheme to coerce Ukraine to investigate his political rival, and his obstruction of
Congress. The President was acquitted after a trial on those Articles in the Senate.
it “has continued and will continue those investigations consistent with its own
prior statements respecting their importance and purposes.” H. Rep. No. 116-346,
at 159 n.928 (2019). The Mueller Report grand-jury 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
23, 2019).
5. On March 10, 2020, the court of appeals affirmed the district court’s order
in a 2-1 decision. App. 1a-75a. All three members of the panel agreed on the
answer to the primary legal question presented, and the only one on which DOJ
7
intends to seek certiorari: whether a Senate impeachment trial is a “judicial
proceeding” for purposes of Rule 6(e)(3)(E)(i). See App. 25a-26a; App. 33a-34a (Rao,
J., dissenting); Stay App. 2. Like the district court, the court of appeals explained
that both “circuit precedent,” App. 6a, 11a-12a (citing McKeever v. Barr, 920 F.3d
842 (D.C. Cir. 2019), and Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (en
The court of appeals also concluded that the district court did not abuse its
discretion when it found that the Committee had established the required
“particularized need” for the grand-jury materials that it ordered disclosed. The
court of appeals held that the district court had properly balanced the Committee’s
need for the information with any interests in continued secrecy under the Douglas
Oil test. App. 19a-25a. Especially given the Committee’s “special protocols to
restrict access to the grand jury materials in order to maintain their secrecy,” App.
20a, the court held that the district court had properly applied this Court’s
Judge Rao dissented, but not on the issues on which DOJ intends to seek this
Court’s review. She “agree[d] with the majority that the Committee’s petition could
fit within Rule 6(e)’s ‘judicial proceeding’ exception because it sought the grand jury
8
dissenting). Judge Rao also agreed with the majority that, “[a]t the time of its
decision, the district court did not abuse its discretion in concluding that the
Committee had shown a ‘particularized need’ for the grand jury materials,” App.
35a, but she believed that the case nevertheless should be remanded, in light of the
developments since the district court first ruled, for the court to determine whether
6. DOJ did not seek rehearing en banc in the court of appeals and instead
sought a stay of the mandate pending the final disposition of a petition for a writ of
certiorari. With no noted dissent, the court of appeals denied the requested stay.
See App. 163a. Subsequently, the Chief Justice administratively stayed the court of
appeals’ mandate pending receipt of this response and further order of the Chief
ARGUMENT
This Court should deny DOJ’s application to stay the mandate. DOJ “must
demonstrate (1) a reasonable probability that this Court will grant certiorari, (2) a
fair prospect that the Court will then reverse the decision below, and (3) a likelihood
that irreparable harm [will] result from the denial of a stay.” Maryland v. King,
567 U.S. 1301, 1302 (2012) (Roberts, C.J., in chambers) (quotation marks omitted).
These conditions “are necessary” but “not necessarily sufficient” to grant a stay.
Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1304
9
If these conditions are met, this Court also must “balance the equities—[by]
explor[ing] the relative harms to applicant and respondent, as well as the interests
of the public at large.” Id. at 1305 (quotation marks omitted). “Where there is
doubt, it should inure to the benefit of those who oppose grant of the extraordinary
relief which a stay represents.” Williams v. Zbaraz, 442 U.S. 1309, 1316 (1979)
DOJ cannot satisfy this standard. The case plainly does not warrant this
circuit split, and the district court ordered only limited disclosure in a context that
rarely arises. And the decision below was correct: the court of appeals’
practice, and Rule (6)(e) itself, and the court’s application of the particularized-need
test comported fully with the standard established by this Court. DOJ has failed to
establish that the disclosure of the grand-jury materials would harm any interest
stay sought by DOJ would seriously and irreparably harm the public and the
This case does not warrant this Court’s review. The court of appeals’ opinion
does not conflict with a decision of this Court or any other circuit. See S. Ct. R.
10(a), (c). On the primary legal question—the meaning of the term “judicial
10
including Judge Rao, agreed that a Senate impeachment trial is a “judicial
(Rao, J., dissenting). No circuit has held otherwise, and this holding accords with
decades of precedent as well as DOJ’s own longstanding position before this case.
See McKeever, 920 F.3d 842, cert. denied, 140 S. Ct. 597 (2020); Haldeman, 501 F.2d
714; see also In re Grand Jury Proceedings of Grand Jury No. 87-1, 669 F. Supp.
The most that DOJ can muster is an assertion (at 14) that the court of
United States v. Baggot, 463 U.S. 476, 480 (1983). But as discussed below, the court
of appeals’ decision is fully consistent with Baggot, which said nothing at all about
disclosure to Congress.
presented here almost certainly will arise only rarely. Impeachments are rare, and
impeachments requiring the use of grand-jury materials are rarer still. It is not
likely that a decision by this Court in this case would provide guidance for many
future cases.
DOJ nonetheless contends (at 14) that the court of appeals’ opinion requires
case does not pit the political branches against one another. As the court of appeals
11
explained, “grand jury records are court records,” App. 9a, and “it is the district
court, not the Executive or [DOJ], that controls access to the grand jury materials at
issue here,” App. 10a. And DOJ acknowledges (at 15) that the scope of the grand-
jury secrecy rules is “ordinarily” best left to the Advisory Committee on Criminal
Rules, which can recommend amendments to the rules that this Court can accept or
and the courts. As the court of appeals noted, since Rule 6(e) was enacted in 1946,
“federal courts have authorized the disclosure of grand jury materials to the House
for use in impeachment investigations involving two presidents and three federal
judges.” App. 14a. To our knowledge, no court has ever turned down a request for
status quo reflected in those cases, including the House’s prerogative to obtain the
information necessary to carry out its core Article I functions. Until this litigation,
DOJ had, for decades, agreed that courts have authority to order disclosure of
117a-18a n.30. As the court of appeals observed, “[i]t is only the President’s
App. 14a. Indeed, DOJ advanced its previous position as part of a successful effort
to persuade the D.C. Circuit that courts lack inherent authority to order disclosure
12
Committee argued in this case that DOJ is judicially estopped from pressing its new
position. See 117a-18a n.30 (noting but declining to address estoppel arguments
given the court’s decision on the merits). The potential for estoppel makes this case
applied this Court’s precedent to ensure that the Committee had an appropriately
particularized need for the materials without the second-guessing of the House’s
(at 14-33) were correctly rejected by both courts below. DOJ asks this Court to
engage in error correction, but the “Court is not primarily concerned with the
Court Practice § 4.17 (11th ed. 2019). And to the extent that DOJ’s application
attempts to cast doubt on whether the panel correctly concluded that the district
court did not abuse its discretion in applying the Rule 6(e) standard to the facts of
this case, that claim is a fact-bound determination that does not warrant this
The court of appeals correctly decided this case, and DOJ’s arguments to the
contrary are meritless. DOJ thus cannot establish a fair prospect that, even if this
13
1. The Court of Appeals Correctly Determined That A Senate
Impeachment Trial Is A Judicial Proceeding
6(e)(3)(E)(i)’s exception to the general rule of grand-jury secrecy for use of grand-
proceeding and therefore fits within Rule 6(e)(3)(E)(i)’s exception. Article I provides
that “[t]he Senate shall have the sole Power to try all Impeachments.” U.S. Const.,
Art. I, § 3, cl. 6 (emphasis added). It further states that when the President “is
tried, the Chief Justice shall preside.” Id. (emphases added). It describes a
it refers to “the Party convicted.” Id. (emphasis added). Article III similarly
describes an impeachment trial as a type of “Trial of all Crimes.” Id., Art. III, § 2,
The Federalist Papers and this Court’s precedent dating to the Founding
judicial power. See The Federalist No. 47 (James Madison) (describing the Senate
The Federalist No. 65 (Alexander Hamilton) (referring to the “judicial character [of
the Senate] as a court for the trial of impeachments” (emphases added)); Hayburn’s
Case, 2 U.S. 408, 410 n.* (1792) (“[N]o judicial power of any kind appears to be
vested [in Congress], but the important one relative to impeachments.”); Kilbourn v.
14
Thompson, 103 U.S. 168, 191 (1880) (“The Senate … exercises the judicial power of
trying impeachments[.]” (emphasis added)); Marshall v. Gordon, 243 U.S. 521, 547
Senate practice bears this out: the Senate ceases its legislative functions and
convenes as a “court of impeachment” when sitting for that purpose. See 166 Cong.
Rec. S289 (daily ed. Jan. 21, 2020) (Chief Justice convening the Senate “as a Court
of Impeachment”); see also S. Doc. No. 106-4, Vol. II at 1142 (1999) (ruling by Chief
should not be referred to as jurors, because “the Senate is not simply a jury; it is a
court in this case”). As one of President Trump’s attorneys told the Senate during
the President’s impeachment trial, “for literally decades, this body was referred to
Chamber during these proceedings…. We are in court.” 166 Cong. Rec. S580 (daily
History confirms this interpretation of Rule 6(e). The Rule was adopted to
“codif[y] the traditional rule of grand jury secrecy” that was applied at common law.
United States v. Sells Eng’g, 463 U.S. 418, 425 (1983). That common-law history
investigations, including impeachment inquiries. See App. 14a; see also, e.g., 3
15
House its presentment of charges against a federal judge for use in an impeachment
investigation). Since the enactment of Rule 6(e), the federal courts have repeatedly
proceedings. See App. 14a (collecting cases). That history both reflects and
confirms the widely held understanding that the Rule codifies, rather than alters,
traditional practice.
proceeding.” If the Advisory Committee and Congress had wanted to restrict this
exception to only those proceedings that take place in a courtroom, they would have
so stated. Instead, the Rule uses a broader term that, on its face, encompasses all
proceedings of a judicial nature. Indeed, lower courts have long given the term
a judicial nature before a court or official clothed with judicial or quasi judicial
power.” In re Sealed Motion, 880 F.2d 1367, 1380-81 (D.C. Cir. 1989) (per curiam)
(quotation marks omitted); see also Doe v. Rosenberry, 255 F.2d 118, 120 (2d Cir.
1958) (Hand, J.) (bar disciplinary proceeding); In re Special February 1971 Grand
Jury v. Conlisk, 490 F.2d 894, 897-98 (7th Cir. 1973) (police disciplinary
proceedings); Patton v. Comm’r of Internal Revenue, 799 F.2d 166, 172 (5th Cir.
The structure of Rule 6(e) further supports this conclusion. The other
comparable to this one—where government officials seek the material for use in
16
connection with their official duties. Because statutory terms “are often known by
the company they keep,” Lagos v. United States, 138 S. Ct. 1684, 1688-89 (2018), the
b. DOJ’s arguments to the contrary are wrong. DOJ claims (at 14) the court
impeachment trial is “in serious tension” with this Court’s decision in Baggot. But
DOJ misreads that case, which said nothing at all about disclosures of grand-jury
grand-jury materials by the Internal Revenue Service (IRS) for use in a taxpayer
audit. 463 U.S. at 478. Both parties agreed that the “judicial proceeding” for
purposes of Rule 6(e) in that case was possible litigation in the form of a
redetermination proceeding or refund suit that could result from the audit. Id. at
479. Therefore, the only question presented was “whether disclosure for use in an
within the meaning of” Rule 6(e)—not whether those proceedings were “judicial
proceedings.” Id.
In context, this Court’s statement that the Rule contemplates “uses related
between the use for which the material was sought (there, a civil audit) and the
identifiable judicial proceeding (there, a refund suit). Id. at 480. It did not express
17
a limitation on the types of proceedings that can fall within Rule 6(e)’s scope. Id.;
DOJ also incorrectly asserts (at 18) that other uses of “judicial proceeding” in
Rule 6(e)(3)(F) and (G) appear to refer to court proceedings and “would make little
that courts receiving disclosure petitions afford the “parties to the judicial
Committee served its petition on the President (the “party” to the impeachment
proceedings), who had an opportunity to be heard before the district court had he
wished to file independently of DOJ. See Certificate of Service (July 30, 2019), Dkt.
No. 3. Rule 6(e)(3)(G), in turn, directs that “[i]f the petition to disclose arises out of
“transfer the petition to the other court” (emphasis added). The use of the word “if”
contemplates that not all disclosure petitions “arise[] out of a judicial proceeding in
another district.” Indeed, the Advisory Committee has explained that this transfer
and not to proceedings in state courts. Fed. R. Crim. P. 6(e)(3)(E) advisory comm.
note on 1983 amend. Yet this does not mean that state court proceedings are not
18
Finally, in light of its recent change in position, DOJ dismisses (at 23-24) the
dispositive. But this Court should not discount the lower courts’ decisions simply
because they agreed with DOJ’s prior view. To the contrary, the decisions only
underscore that DOJ had it right the first time. Although DOJ agreed in those
cases that Congress was entitled to the grand-jury material, the question whether
disclosure to Congress was appropriate was vigorously litigated in each case and, in
turn, considered and decided by the court in each case.2 DOJ cannot now use its
raised for the first time before the court of appeals in this very case—as an excuse
a court must analyze the requester’s “particularized need” for the material. See
Douglas Oil, 441 U.S. at 222-23. That standard can be faithfully applied where the
judicial proceeding is a Senate impeachment trial, as the courts below did here.
2 See, e.g., In re Request for Access to Grand Jury Materials Grand Jury No.
81-1, Miami, 833 F.2d 1438, 1442 (11th Cir. 1987) (noting that Judge Hastings
opposed the disclosure of grand-jury materials for use in his impeachment trial and
argued that such “an ‘inter-branch transfer’ … should be closely scrutinized under a
separation of powers analysis”); Haldeman, 501 F.2d at 715 (“The position of both
petitioners essentially is that the District Judge should not disclose to the Judiciary
Committee evidence taken before the grand jury that returned the indictment
against petitioners.”); In re Report & Recommendation of June 5, 1972 Grand Jury,
370 F. Supp. 1219, 1221 (D.D.C. 1974) (“[A]ttorneys for seven persons named in an
indictment returned by the same June, 1972 Grand Jury … have generally objected
to any disclosure of the Report[.]”).
19
DOJ’s suggestion that the court of appeals applied a different and incorrect
meticulously applied this Court’s precedents while avoiding any of the separation-
of-powers concerns that DOJ speculates could arise when a court examines the
material under Rule 6(e) must show (1) “that the material they seek is needed to
avoid a possible injustice in another judicial proceeding,” (2) “that the need for
disclosure is greater than the need for continued secrecy,” and (3) “that their
request is structured to cover only material so needed.” Id. at 222. These factors
require a “balanc[ing],” id. at 223, to “accommodate the competing needs for secrecy
and disclosure,” id. at 221. The relevant “standard is a highly flexible one,
adaptable to different circumstances and sensitive to the fact that the requirements
of secrecy are greater in some situations than in others.” Sells Eng’g, 463 U.S. at
As discussed below, this flexible standard can be applied where the disclosure
intended to cast doubt on whether the particularized need test is satisfied here—a
(“emphasiz[ing]” that courts applying the particularized need test are “infused with
20
As the court of appeals explained, the district court did not abuse its
discretion when, after “reviewing in detail the findings in the Mueller Report,” it
determined “that any remaining secrecy interests in the redacted grand jury
materials were readily outweighed by the Committee’s compelling need for the
materials.” App. 20a; see Douglas Oil, 441 U.S. at 223. As the court of appeals
explained, the Committee has a compelling need for the materials “in order to
App. 20a. And the fact that the “need for grand jury secrecy is reduced after the
grand jury has concluded,” App. 19a, coupled with “the Committee’s adoption of
special protocols to restrict access to the grand jury materials in order to maintain
their secrecy,” App. 20a, diminishes the competing need for secrecy.
There is no merit to DOJ’s additional argument (at 31) that the Committee
no longer has a particularized need for the requested grand-jury material because
several months ago. The Committee’s investigation did not cease with the
conclusion of the impeachment trial. The Committee “has continued and will
continue those investigations consistent with its own prior statements respecting
their importance and purposes.” H. Rep. No. 116-346, at 159 n.928. The withheld
21
conclusion that President Trump committed impeachable offenses that are not
covered by the Articles adopted by the House, the Committee will proceed
b. DOJ is also wrong to argue (at 24-32) that the particularized-need test
relevance standard inconsistent with this Court’s precedent; and (3) any attempt to
powers problems that render the Rule unconstitutional. Each of these contentions
is incorrect.
the contrary, taking into account the context and special circumstances of the
Eng’g, 463 U.S. at 445. It also follows this Court’s approach in other cases that
For example, in Dennis v. United States, 384 U.S. 855 (1966), this Court
criminal defendant facing trial. In that case, this Court authorized disclosure of the
22
grand-jury testimony of four witnesses, reasoning that the applicant was “entitled
certain statements at issue in the case. Id. at 872-73 (emphasis added). It reversed
the district court’s refusal to disclose this material, observing that “it is especially
important that the defense, the judge and the jury should have the assurance that
the doors that may lead to truth have been unlocked,” and that the applicant’s
showing of need “goes substantially beyond the minimum required by Rule 6(e) and
the prior decisions of this Court.” Id. at 873; see also United States v. John Doe, Inc.
I, 481 U.S. 102, 113-16 (1987) (authorizing sharing of grand-jury information among
DOJ attorneys and stressing that “public purposes served by the disclosure—
disclosure to select DOJ attorneys, which “does not pose the same risk of a wide
The court of appeals correctly applied this precedent here, recognizing that
assess need consistent with this Court’s precedent while avoiding any constitutional
Second, the court of appeals did not apply a “mere ‘relevance’ standard” or
“hand off all relevant materials” to the Committee as DOJ suggests (at 30 (quoting
App. 18a)). Rather, the court of appeals, after applying the three Douglas Oil
factors described above, affirmed the district court’s order disclosing two of the
23
three discrete categories of specific information that the Committee had requested.
redactions in the Mueller Report and the portions of the underlying grand-jury
were necessary for its investigation into whether the President obstructed the
Russia investigation. See Douglas Oil, 441 U.S. at 222 (disclosure must be
“structured to cover only material so needed”). The district court did not order, and
the court of appeals did not affirm, a blanket disclosure of all material potentially
The court of appeals properly applied the flexible Douglas Oil test. Nothing
more was required. As the court of appeals explained, “courts have required a line-
specific witness.” App. 18a. The court of appeals’ approach adhered to this Court’s
precedent.
standard in this case obviated the potential constitutional issues that DOJ raises.
As the decision below demonstrates, a court can apply the “highly flexible” test from
24
Douglas Oil faithfully, Sells Eng’g, 463 U.S. at 445, without improperly interfering
with Congress’s performance of its impeachment functions, App. 18a. There is,
therefore, no merit to DOJ’s concern (at 26-27) that applying the particularized-
DOJ incorrectly argues (at 24-26) that the panel’s approach renders
disclose grand-jury material “at a time, in a manner, and subject to any other
conditions that it directs.” In DOJ’s view, because the Speech or Debate Clause
limits the types of conditions a court may place on disclosure of grand-jury material
Congress. However, even under DOJ’s reading, a court would retain the ability to
allowing only in camera review at the court. And to the extent the Constitution
limitation does not render the Rule unconstitutional. A court’s actions and
application of the law are always bound by the Constitution. Recognizing that a
rule must be applied consistent with the Constitution does not mean that the rule
itself is unconstitutional.
25
C. Any Harm That Releasing The Materials Would Cause DOJ Is Far
Outweighed By The Additional Irreparable Harm That A Lengthy
Stay Would Cause The Committee And The Public
contrast, the additional irreparable harm to the Committee and the public from
further delaying the impeachment investigation vastly outweighs any harm to DOJ.
1. DOJ cannot show that it would suffer irreparable harm absent a stay. As
the court of appeals recognized, “grand jury records are court records” and “do not
become Executive Branch documents simply because they are housed with the
Department of Justice.” App. 9a. DOJ itself “has no interest in objecting to the
release of these materials outside of the general purposes and policies of grand jury
DOJ’s primary argument (at 33) for irreparable harm is that “[o]nce the
government discloses the secret grand-jury records, their secrecy will irrevocably be
lost.” But in this case, unlike other cases involving the disclosure of grand-jury
material where the same harm argument could be made, the Committee has
These protocols—now found sufficiently protective by two courts, see App. 20a,
The protocols are similar to those adopted by the Committee decades ago to
jury report, which the Committee still has not released more than 45 years after
receiving it. See App. 20a-21a. And despite DOJ’s assumption that the Committee
26
could nonetheless authorize reckless public disclosures, “[t]he courts must presume
that the committees of Congress will exercise their powers responsibly and with due
regard for the rights of affected parties.” Exxon Corp. v. FTC, 589 F.2d 582, 589
(D.C. Cir. 1978). The Committee has already done so here with respect to certain
non-Rule 6(e) materials that were redacted in the public version of the Mueller
does not assert that the Committee has improperly released that sensitive
information.
substantially diminished at this juncture. DOJ, notably, does not contend that
matters. And now that the Mueller grand jury has concluded its work, secrecy is no
longer necessary to protect many of the core values that Rule 6(e) serves during
investigations and protecting active witnesses. See Douglas Oil, 441 U.S. at 218-19.
Nor is there a serious risk that future witnesses before grand juries would be less
testify under oath and can be prosecuted for perjury. DOJ offers no reason to think
witnesses would break that oath based on the remote possibility that portions of
investigation.
27
DOJ suggests (at 34) that if the grand-jury materials are disclosed to the
Committee, “there is a serious question whether this case would become moot.”
protect against disclosure. And the district court, in any event, ordered a staged
release of only two of the three categories of grand-jury material the Committee
requested, explaining that it would release the third category only upon a separate
showing of particularized need. App. 150a. Therefore, “this case” will remain a live
controversy between the parties regardless. See Knox v. Serv. Emps. Int’l Union,
567 U.S. 298, 307-08 (2012) (“[A]s long as the parties have a concrete interest,
however small, in the outcome of the litigation, the case is not moot.”).
receiving the materials would cause the Committee and the public to suffer
obtain this information infringes on the “sole Power of Impeachment” that the
Constitution vests in the House, see U.S. Const., Art. I, § 2, cl. 5, the lengthy stay
harm, see Loving v. United States, 517 U.S. 748, 757 (1996) (“[T]he separation-of-
powers doctrine requires that a branch not impair another in the performance of its
constitutional duties.”).
DOJ is wrong (at 35) that the Committee “has not asserted any time-sensitive
need for the requested materials.” At every stage of this litigation, the Committee
28
has made clear the urgency and gravity of its task.3 The Committee initially
requested the grand-jury materials more than a year ago, and it has been more
than six months since the district court ordered them disclosed to the Committee in
a decision that the court of appeals has now affirmed. As the Committee informed
misconduct is ongoing, and the grand-jury material will inform its determination
light of recent events. For example, the Committee is investigating the possible
exercise of improper political influence over recent decisions made in the Roger
Stone and Michael Flynn prosecutions, both of which were initiated by the Special
Counsel. See Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, et
al. to Michael E. Horowitz, Inspector General, U.S. Dep’t of Justice (May 8, 2020),
hearing with the Attorney General—who has failed to appear before the Committee
at any point on any topic during his tenure—on these issues as soon as possible.
3See, e.g., C.A. App. 99-101; Opp’n of the Comm. on the Judiciary to DOJ’s
Emergency Mot. for a Stay Pending Appeal 20-22 (Nov. 1, 2019); Corrected Br. of
the Comm. on the Judiciary 2 (Dec. 17, 2019); Opp’n of the Comm. on the Judiciary
to DOJ’s Mot. to Stay Mandate 10-12 (Apr. 29, 2020).
29
DOJ’s Decision to Drop Criminal Charges Against Michael Flynn (May 7, 2020),
https://perma.cc/R2QT-AVXB.
A stay would also harm the public interest. DOJ’s own Office of Legal
O.L.C. 222, 258 (2000). Delaying disclosure of this information has already
irremediable. “[T]he House, unlike the Senate, is not a continuing body.” Eastland
v. U.S. Servicemen’s Fund, 421 U.S. 491, 512 (1975). The current House concludes
in less than eight months. Because DOJ’s petition would not be due until early
August, a stay until this Court decides whether to grant or deny that petition would
seriously endanger the Committee’s ability to complete its investigation during this
These profound and irreparable injuries to the Committee and the public
If the Court grants a stay, the Committee requests that the stay be
conditioned on the expedited filing of DOJ’s petition for certiorari. DOJ should be
required to file its petition for a writ of certiorari by June 1, 2020, and the
Committee will then file its brief in opposition by June 15, so that the Court can
30
decide whether to grant or deny the petition at its conference on June 25. See, e.g.,
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2085 (2017) (at Solicitor
of petition). Such “expeditious treatment,” Eastland, 421 U.S. at 511 n.17, would
reduce, at least to some extent, the serious harms a further, lengthy stay would
CONCLUSION
For the foregoing reasons, the application for a stay should be denied.
Respectfully submitted,
31