Appeals Court Appears Unsure If House Can Sue To Get Mueller Grand Jury Docs

WASHINGTON, DC - JULY 24: Former Special Counsel Robert Mueller testifies before the House Judiciary Committee about his report on Russian interference in the 2016 presidential election in the Rayburn House Office Bu... WASHINGTON, DC - JULY 24: Former Special Counsel Robert Mueller testifies before the House Judiciary Committee about his report on Russian interference in the 2016 presidential election in the Rayburn House Office Building July 24, 2019 in Washington, DC. Mueller, along with former Deputy Special Counsel Aaron Zebley, will later testify before the House Intelligence Committee in back-to-back hearings on Capitol Hill. (Photo by Chip Somodevilla/Getty Images) MORE LESS
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December 13, 2019 5:21 p.m.

An appeals court considering whether the House can access special counsel Robert Mueller’s grand jury material wants to hear arguments on whether the House can even sue to obtain the documents.

Ahead of oral arguments in the case early next month, the appeals court Friday ordered additional briefing addressing whether the House “has Article III standing.”

It’s unclear whether all three judges on the appellate court panel have questions about the House’s standing to sue the Justice Department for the materials. The short, unsigned per curium order of the three-judge panel gave the parties a 3,000-word limit on their briefs.

At a previous hearing in the appeal, Judge Neomi Rao — appointed to the D.C. Circuit by President Trump to fill the seat vacated by Justice Brett Kavanaugh — questioned whether it would be impermissible for the court to get involved since the dispute was ostensibly related to the House impeachment proceedings.

A lawyer for the House had said at the hearing that the grand jury materials could shed light on whether Trump lied to Mueller, an issue the lawyer said that House was looking at in the impeachment inquiry. The impeachment articles passed out of committee Friday morning make only a passing and vague reference to the Mueller probe.

It’s unclear whether Friday’s order from the appeals court was related to the House’s move to advance an impeachment case not related to the materials it is seeking from the Mueller grand jury.

A decision has not been issued yet on the Justice Department request to preliminarily halt disclosure of the materials while the case is fully appealed.

Oral arguments on the merits of the appeal are scheduled for Jan. 3. The House’s lawsuit for the materials was filed in July after the DOJ claimed that grand jury secrecy law prohibited their transmission to the House. In October, Judge Beryl Howell, the chief judge of the D.C. district court, issued a 75-opinion permitting the disclosure of the materials because the House’s impeachment inquiry fell under grand jury secrecy law’s exception for judicial proceedings.

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