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House Hints It May Drop Supreme Court Case Seeking Mueller Grand Jury Info

Alex Brandon

The House Judiciary Committee is asking the U.S. Supreme Court to postpone arguments set for Dec. 2 in a case testing whether the committee has the right to see grand jury materials related to the Trump impeachment inquiry.

The committee has sought the material since July 2019 when it went to court after Attorney General William Barr refused to provide the panel with an unredacted copy of Special Counsel Robert Mueller's report.

Two lower courts ruled that the committee's work was related to a judicial proceeding — impeachment — and that the panel was thus entitled to have access to the unredacted report and other normally secret materials presented to the grand jury. Those materials involved both the question of Donald Trump's ties to Russia during the 2016 presidential campaign and whether his subsequent actions as president amounted to obstruction of justice.

Trump runs out the clock

Previous presidents facing impeachment inquiries in modern times — Presidents Nixon and Clinton — allowed similar grand jury materials to be turned over to the House. "To our knowledge," said lawyers for the House in their briefs, "no court has ever turned down a request for grand jury materials by Congress in connection with impeachment."

But the Trump administration refused, prompting the Judiciary Committee to go to court nearly a year and a half ago. Even as Trump fought the committee in the lower courts, the House impeached him last December, and the GOP-controlled Senate acquitted him in February 2020.

Meanwhile in the courts, Trump was batting 0 for 2. Ultimately, after two lower court losses, he appealed to the Supreme Court, where the justices this past July agreed to hear the case and later scheduled arguments for Dec. 2.

Now, however, in the aftermath of Trump's loss of the presidency, the House has filed a motion with the Supreme Court, asking the justices to "recalendar" arguments in the case for a time after the swearing in of a new president on Jan. 20, and the swearing in of a new Congress even before that, on Jan. 3.

"Once those events occur, the newly constituted [Judiciary] committee will have to decide whether it wishes to continue pursuing ... the grand jury materials that gave rise to this case," the House said in its motion to the court, adding that "postponing argument would be in the interest of the parties and may conserve judicial resources."

That's a fancy way of saying, or almost saying, the following: Yes, the House could still impeach Trump and remove him permanently from office. But when oral arguments take place, the justices will almost certainly ask the lawyers for the House, whether the Judiciary Committee is actually considering doing that.

In previous filings, the House said it was indeed still considering another impeachment if the evidence it found in the Mueller grand jury materials justified a second impeachment. In fact, the House briefs said that new avenues of inquiry had recently arisen, including the Justice Department's request for leniency for Trump's longtime confidant, Roger Stone, convicted of witness tampering and perjury, and the Justice Department's request to dismiss its case against former Trump national security adviser Michael Flynn, who pleaded guilty twice to lying to federal investigators.

In addition, the House told the justices this year that it still wanted to see information about whether Trump had obstructed justice, a subject on which Mueller refused to take a position.

Election makes a once plausible argument implausible

Prior to the election, the notion of a continued interest in a second impeachment was at least a plausible argument.

But in the aftermath of the election, that would be a much more difficult argument to make, especially since former Vice President Joe Biden has been projected to receive more than a sufficient number of Electoral College votes to win the presidency, and Trump is supposed to leave office on Jan. 20.

The House filing in the Supreme Court on Tuesday does appear to leave wiggle room in case Trump, who has refused to concede the election, refuses to leave the White House. But assuming he does turn over the presidency as he is supposed to, there would appear to be little incentive for the newly constituted Judiciary Committee to continue with the impeachment-related litigation. And there is almost zero chance that Biden, once president, would want the House to continue its impeachment investigation of Trump, even if it could.

The House lawyers indicated in their motion that they had given the Justice Department the opportunity to join in the motion to postpone argument in the case and that the Trump administration had refused. That may mean the Trump Justice Department may instead seek an outright dismissal of the case prior to Trump's leaving office. But Chief Justice John Roberts will almost certainly ask the Justice Department for the administration's position in the case.

Should the Supreme Court agree to such a dismissal, it would be the second time it has indirectly come to the aid of the president in this particular case. By agreeing to hear the case last July — a full year after the House Committee's request for the full Mueller report — the court all but ensured that the Mueller report would not be made public in its entirety until after the election. At the time, Judiciary Committee Chairman Jerry Nadler, D-N.Y., expressed disappointment, declaring that, Trump and Attorney General Barr "are continuing to try to run out the clock on any and all accountability."

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.