IN RE: APPLICATION OF THE COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, FOR AN ORDER AUTHORIZING THE RELEASE OF CERTAIN GRAND JURY MATERIALS,
COMMITTEE ON THE JUDICIARY, UNITED STATES HOUSE OF REPRESENTATIVES, APPELLEE v. UNITED STATES DEPARTMENT OF JUSTICE, APPELLANT
No. 19-5288
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 3, 2020 Decided March 10, 2020
Appeal from the United States District Court for the District of Columbia (No. 1:19-gj-00048)
Mark R. Freeman, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Hashim M. Mooppan, Deputy Assistant Attorney General, and Michael S. Raab and Brad Hinshelwood, Attorneys.
Douglas N. Letter, General Counsel, U.S. House of Representatives, argued the cause for appellee. With him on the brief were Todd B. Tatelman, Deputy General Counsel, Megan Barbero and Josephine Morse, Associate General Counsel, Adam A. Grogg and William E. Havemann, Assistant General Counsel, Jonathan B. Schwartz, Attorney, Annie L. Owens, Mary B. McCord, and Daniel B. Rice.
Elizabeth B. Wydra, Brianne J. Gorod, and Ashwin P. Phatak were on the brief for amicus curiae Constitutional Accountability Center in support of the Committee on the Judiciary, U.S. House of Representatives.
Before: ROGERS, GRIFFITH, and RAO, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
Concurring opinion by Circuit Judge GRIFFITH.
Dissenting opinion by Circuit Judge RAO.
Article I of the United States Constitution provides that the House of Representatives “shall have the sole Power of Impeachment.” U.S. CONST. art. I, § 2, cl. 5. Further, the Senate “shall have the sole Power to try all Impeachments.” Id. § 3, cl. 6.
The Committee on the Judiciary of the U.S. House of Representatives seeks to obtain the redacted grand jury materials referenced in the Special Counsel‘s Report in connection with its impeachment investigation of President Donald J. Trump. The district court authorized the disclosure of these grand jury materials pursuant to the “judicial proceeding” exception in
I.
In May 2017, Deputy U.S. Attorney General Rod Rosenstein appointed Robert S. Mueller, III, as Special Counsel to investigate Russian interference in the 2016 presidential election, including any links or coordination between the Russian government and individuals associated with President Trump‘s election campaign. As part of this investigation, a grand jury sitting in the District of Columbia “issued more than 2,800 subpoenas” and almost 80 witnesses testified before the grand jury. Special Counsel Robert S. Mueller, III, Report on the Investigation into Russian Interference in the 2016 Presidential Election, Vol. I at 13 (March 2019) (“The Mueller Report“). In addition, the Special Counsel‘s Office interviewed “approximately 500 witnesses” under oath, id., including members of the Administration.
On March 22, 2019, the Special Counsel submitted his confidential two-volume report to the Attorney General pursuant to
The Attorney General released a public version of the Mueller Report in April 2019, with redactions for grand jury materials, and other information that he determined could compromise ongoing intelligence or law enforcement activities, harm ongoing criminal matters, or unduly infringe upon the personal privacy interests of peripheral third parties. Letter from Attorney General Barr to Senate Judiciary Chairman Graham and Ranking Member Feinstein, and House Judiciary Chairman Nadler and Ranking Member Collins (Apr. 18, 2019). The Assistant Attorney General wrote the Committee that certain members of Congress, including the Chairman and Ranking Members of the House Judiciary Committee, could review an unredacted version of the Report, except for redactions relating to grand jury information, which the Attorney General claimed he was prohibited from disclosing to Congress
In October 2019, the House of Representatives passed House Resolution 660, which directed six committees, including the House Judiciary Committee and the House Intelligence Committee, to continue their ongoing impeachment investigations. H. Res. 660, 116th Cong. (2019). On December 18, 2019, the full House adopted two Articles of Impeachment against President Trump. H. Res. 755, 116th Cong. (2019). The first Article of Impeachment, “Abuse of Power,” alleges that President Trump “solicited the interference of a foreign government, Ukraine, in the [upcoming] 2020 United States Presidential election.” Id. at 1. The second Article, “Obstruction of Congress,” alleges that President Trump “directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives.” Id. at 2.
The House Judiciary Committee‘s Report on the Impeachment of President Trump asserts that the conduct described by these Articles is consistent with the President‘s “inviting and welcoming Russian interference in the 2016 United States Presidential election,” H. Rep. No. 116-346, at 127 (2019), and the President‘s “endeavor to impede the Special Counsel‘s investigation into Russian interference . . . as well as [his] sustained efforts to obstruct the Special Counsel after learning that he was under investigation for obstruction of justice,” id. at 159-60. The Committee Report also makes clear that although two Articles of Impeachment have been approved, the Committee‘s impeachment investigation related to the Mueller Report is ongoing. Id. at 159 n.928; see also Appellee‘s Supp. Br. 17 (Dec. 23, 2019); Oral Arg. Tr. at 59-60 (Jan. 3, 2020).
On July 26, 2019, the House Judiciary Committee filed an application for an order authorizing the release of certain grand jury materials related to the Mueller Report pursuant to
On October 25, 2019, the district court granted the Committee‘s application. The district court concluded that a Senate impeachment trial is a “judicial proceeding” under
The district court therefore authorized the disclosure of the first two categories of requested grand jury information: all portions of the Mueller Report redacted pursuant to
The Department appealed and sought a stay pending appeal from the district court and from this court. The district court denied a stay pending appeal. This court entered an administrative stay on October 29, 2019, held oral argument on the stay motion on November 18, 2019, and then extended the administrative stay setting the case for expedited briefing and oral argument on the merits on January 3, 2020.
II.
The Committee asks this court to interpret and apply
The grand jury functions to a large degree at “arm‘s length” from the judicial branch, United States v. Williams, 504 U.S. 36, 47 (1992), but it operates under the auspices of the district court in which it is convened, see
Numerous courts have recognized that grand jury records are court records. Carlson v. United States, 837 F.3d 753, 758-59 (7th Cir. 2016); Standley v. Dep‘t of Justice, 835 F.2d 216, 218 (9th Cir. 1987); In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 31 (2d Cir. 1981); United States v. Penrod, 609 F.2d 1092, 1097 (4th Cir. 1979). “The grand jury minutes and transcripts are not the property of the Government‘s attorneys, agents or investigators . . . . Instead those documents are records of the court.” Procter & Gamble Co., 356 U.S. at 684-85 (Whittaker, J., concurring). But even where doubt is expressed whether grand jury records are judicial records,
Although the grand jury “has not been textually assigned . . . to any of the branches,” Williams, 504 U.S. at 47, it “remains an appendage of the court,” Seals, 130 F.3d at 457 (quoting Brown v. United States, 359 U.S. 41, 49 (1959), overruled on other grounds by Harris v. United States, 382 U.S. 162 (1965)). Grand jury records do not become Executive Branch documents simply because they are housed with the Department of Justice. For instance, in the Freedom of Information Act context, where “documents remain within the control of the court and the grand jury,” those documents are not “agency records” and are not subject to FOIA‘s disclosure requirements that otherwise apply to agency documents even if they are in the possession of the Department of Justice. Tigar & Buffone v. Dep‘t of Justice, 590 F. Supp. 1012, 1014-15 (D.D.C. 1984). As the Ninth Circuit has explained, “were court documents deemed ‘agency records’ for purposes of the FOIA when held by the [Department], the Act would encroach upon the authority of the courts to control the dissemination of its documents to the public.” Warth v. Dep‘t of Justice, 595 F.2d 521, 523 (9th Cir. 1979). This court has applied similar reasoning to congressional documents transmitted from Congress to the Executive. Am. Civil Liberties Union v. CIA, 823 F.3d 655, 667-68 (D.C. Cir. 2016).
In short, it is the district court, not the Executive or the Department, that controls access to the grand jury materials at issue here. The Department has objected to disclosure of the redacted grand jury materials, but the Department has no interest in objecting to the release of these materials outside of the general purposes and policies of grand jury secrecy, which as discussed, do not outweigh the Committee‘s compelling need for disclosure. Even if the Department had not objected to disclosure, the district court would still need to authorize disclosure pursuant to
III.
On the merits, the Department maintains that the district court erred in concluding that Haldeman and McKeever establish binding precedent on the correct meaning of the term “judicial proceeding” in
In In re 1972 Grand Jury Report, Chief Judge Sirica ordered the disclosure of the grand jury report and accompanying materials to be delivered to the House Judiciary Committee, which was then engaged in an impeachment investigation of President Richard M. Nixon. 370 F. Supp. at 1230-31. This court denied mandamus relief in Haldeman, holding that Chief Judge Sirica had not abused his discretion in ordering the release of these materials. 501 F.2d at 715-16. Significantly, this court expressed “general agreement with his handling of these matters,” observing that Chief Judge Sirica “dealt at length” with the contention that
Even assuming that the court‘s opinion in Haldeman was “ambiguous” as to whether the disclosure of grand jury materials to Congress was permitted under the “judicial proceeding” exception or the court‘s inherent authority, see McKeever, 920 F.3d at 847 n.3, this court‘s decision in McKeever clarified that district courts lack inherent authority outside of the exceptions listed in
Neither in Haldeman nor McKeever did this court explain in detail why impeachment qualifies as a judicial proceeding, although the en banc court in Haldeman embraced Chief Judge Sirica‘s analysis, 501 F.2d at 715, and the term “judicial proceeding” in
The constitutional text confirms that a Senate impeachment trial is a judicial proceeding.
The Department objects that the term “judicial proceeding” in
Additionally, the historical practice supports interpreting
Since
In any event, the Department‘s contrary interpretation of
IV.
The Committee has established a particularized need for the redacted grand jury materials it seeks. The party requesting the grand jury information must show (1) the material “is needed to avoid a possible injustice in another judicial proceeding,” (2) “the need for disclosure is greater than the need for continued secrecy,” and (3) the “request is structured to
The district court did not abuse its discretion. Special Counsel Mueller prepared his Report with the expectation that Congress would review it. See Vol. II at 1. The district court released only those materials that the Special Counsel found sufficiently relevant to discuss or cite in his Report. Moreover, the Department has already released information in the Report that was redacted to avoid harm to peripheral third parties and to ongoing investigations, thereby reducing the need for continued secrecy. Finally, the Committee‘s particularized need for the grand jury materials remains unchanged. The Committee has repeatedly stated that if the grand jury materials reveal new evidence of impeachable offenses, the Committee may recommend new articles of impeachment. Appellee‘s Supp. Br. 17 (Dec. 23, 2019); Oral Arg. Tr. at 59-60 (Jan. 3, 2020).
A.
The district court concluded that the Committee needed the redacted grand jury materials to “investigate fully,” to “evaluate the bases for the conclusions reached by the Special Counsel,” and to “reach a final determination” about “whether the President committed an impeachable offense” a question “that the Special Counsel simply left unanswered.” App. for Mueller Report Grand Jury Materials, 2019 WL 5485221, at *35. The district court noted several features of the impeachment investigation that made the Committee‘s need especially compelling. First, because several individuals were convicted of making false statements either to Congress or in connection with the Special Counsel‘s investigation, the court found that the grand jury material at issue “may be helpful in shedding light on inconsistencies or even falsities in the testimony of witnesses called in the House‘s impeachment inquiry.” Id. at *34. Second, the district court found that other sources of information — “such as the public version of the Mueller Report, the other categories of material redacted from the Mueller Report, congressional testimony and FBI Form 302 interview reports” — “cannot substitute for the requested grand jury materials.” Id. at *36. Third, of striking significance, it was undisputed that “the White House has flatly stated that the Administration will not cooperate with congressional requests for information.” Id. (citing Letter from Pat A. Cipollone, White House Counsel, to Representative Nancy Pelosi, Speaker of the House, et al. (Oct. 8, 2019)).
On appeal, the Department contends that a “generalized need” for grand jury materials “to ‘complete the story’ or ‘investigate fully,’ or simply to double-check that witnesses are not lying, has never been sufficient.” Appellant‘s Br. 3. The Department asserts that the district court‘s analysis amounts to no more than an observation that the grand jury materials may be relevant to the Committee‘s
In the impeachment context, both this court sitting en banc in Haldeman and the Eleventh Circuit in Hastings concluded that when Congress seeks access to grand jury materials to assist in an impeachment investigation, district courts hand off all relevant materials to Congress without micromanaging the evidence. For example, in In re 1972 Grand Jury Report, Chief Judge Sirica ordered that the “Grand Jury Report and Recommendation” and accompanying grand jury materials be delivered to the Committee for use in an impeachment investigation involving the President. 370 F. Supp. at 1230-31. The Chief Judge reasoned that “[i]t would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information.” Id. at 1230 (emphasis added). In making this determination, Chief Judge Sirica “carefully examined the contents of the Grand Jury Report” and stated that he was “satisfied that there can be no question regarding their materiality to the House Judiciary Committee‘s investigation,” without parsing through the materials to determine which specific witnesses or lines of testimony were relevant to the Committee‘s investigation. Id. at 1221. This court, in turn, expressed its “general agreement with his handling of these matters.” Haldeman, 501 F.2d at 715. Similarly, in Hastings, the Eleventh Circuit authorized the disclosure of all grand jury materials to the Committee to assist in its impeachment investigation of Judge Hastings because “without full access to the grand jury materials, the public may not have confidence that the Congress considered all relevant evidence.” 833 F.2d at 1445 (emphasis added).
Applying the particularized need standard in this way in the impeachment context avoids the potentially problematic second-guessing of Congress‘s need for evidence that is relevant to its impeachment inquiry.
B.
Here, the
Although the need for continued secrecy remains, the district court reasonably concluded that this need is reduced by the Committee‘s adoption of special protocols to restrict access to the grand jury materials in order to maintain their secrecy. Id. at *37; see Memorandum from Chairman Nadler to Members of the Committee on the Judiciary re Procedures for Handling Grand Jury Information (July 26, 2019). The Department objects that the Committee has the discretion to make the grand jury material public at any time. Appellant‘s Br. 45. But the district court, relying on Chief Judge Sirica‘s analysis, followed a tradition of satisfaction with these protocols. App. for Mueller Report Grand Jury Materials, 2019 WL 5485221, at *37. As Chief Judge Sirica explained, such protocols “insure against unnecessary and inappropriate disclosure,” dismissing concerns about leaks as “speculation.” In re 1972 Grand Jury Report, 370 F. Supp. at 1230. Here, too, the Department offers “no basis on which to assume that the Committee‘s use of the [material] will be injudicious.” Id. In fact, history supports the conclusion that such protocols are not an empty gesture. As the district court noted, “Congress has still not publicly disclosed the entirety of the Watergate grand jury materials, more than forty years after they were provided.” App. for Mueller Report Grand Jury Materials, 2019 WL 5485221, at *37.
jury report that Chief Judge Sirica ordered be given to [the Committee] forty-five years ago, in 1974.” In re App. of Comm. on Judiciary U.S. House of Representatives for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48, 2019 WL 5608827, at *3 (D.D.C. Oct. 29, 2019) (denying stay pending appeal).
Additionally, the risk of “public ridicule” decreases where, as here, there is already “widespread public knowledge about the details of the Special Counsel’s investigation, which paralleled that of the grand jury’s, and about the charging and declination decisions outlined in the Mueller Report.” App. for Mueller Report Grand Jury Materials, 2019 WL 5485221, at *37. Cf. In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006); In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994). The Report was made available to the public and the Special Counsel testified about it in congressional hearings. See, e.g., Former Special Counsel Robert S. Mueller, III on the Investigation into Russian Interference in the 2016 Presidential Election: Hearing Before the H. Perm. Select Comm. on Intelligence, 116th Cong. 49 (July 24, 2019). Moreover, the Department recently introduced the grand jury testimony of senior Trump advisor, Steven Bannon, at Roger Stone’s criminal
It is true that “courts have been reluctant to lift unnecessarily the veil of secrecy.” Douglas Oil, 441 U.S. at 219. In the impeachment context, courts need to be especially careful in balancing the House’s needs against various ongoing secrecy interests inasmuch as courts lack authority to restrict the House’s use of the materials or withdraw them if improvidently issued or disseminated. In Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017), this court suggested that the Speech or Debate Clause bars “ordering a congressional committee to return, destroy, or refrain from publishing” information already in its possession. Id. at 1086. But a compelling need for the material and the public interest may necessitate disclosure. See Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 567 n.15 (1983). Special Counsel Mueller spoke directly to Congress in his Report, see Vol. II at 1, and stopped short of making any “ultimate conclusions about the President’s conduct,” id. at 8. The Department has failed to show in these circumstances that the district court abused its discretion in agreeing that the Committee had a compelling need to be able to reach a final determination about the President’s conduct described in the Mueller Report. Along with the “public’s interest in a diligent and thorough [impeachment] investigation,” these considerations tip the balance toward disclosure. App. for Mueller Report Grand Jury Materials, 2019 WL 5485221, at *38; see In re 1972 Grand Jury Report, 370 F. Supp. at 1227. “Public confidence in a procedure as political and public as impeachment is an important consideration justifying disclosure.” Hastings, 833 F.2d at 1445.
C.
Furthermore, the Committee’s request was tailored to its need. Douglas Oil, 441 U.S. at 222. The Committee requested three categories of grand jury materials: (1) all portions of the Mueller Report that were redacted pursuant to Rule 6(e); (2) any portions of grand jury transcripts or exhibits referenced in those redactions; and (3) any underlying grand jury testimony and exhibits that relate directly to certain individuals and events described in the Mueller Report. Additionally, the Committee proposed a staged disclosure, starting with the first two categories of materials. App. for Mueller Report Grand Jury Materials, 2019 WL 5485221, at *33. The district court reasonably granted this request given the Committee’s compelling need to be able to make a final determination about the President’s conduct described in the Mueller Report, id. at *33, 35, 38, and stated that the Committee could file further requests articulating its need for the grand jury materials in the third category, id. at *33.
The Department’s objections to this limited and structured disclosure are unpersuasive. First, the Department maintains that the disclosure includes a redaction in Volume II that the Committee conceded it did not need. Appellant’s Br. 38; District Ct. Hearing Tr. at 37–38 (Oct. 8, 2019). The Committee made this concession without knowing what was underlying the redactions. The district court later reviewed in camera the grand jury material in Volume II, before authorizing the release of all grand jury material redacted from and referenced in both volumes of the Mueller Report. As to the Committee’s need for the material, the court found that “[t]he grand jury material relied on in Volume II
Second, the Department maintains that the district court could not have evaluated whether the requested material was limited to material relevant to the Committee’s need without conducting an in camera review of Volume I. Appellant’s Br. 38. The district court reviewed the grand jury material redacted from Volume II of the Mueller Report but not from Volume I. As a result, the Department notes that the district court only examined five of the over 240 redactions in the Mueller Report. Reply Br. 23–24. Here, it was unnecessary for the district court to conduct an in camera review of the Volume I redactions. The Committee’s request for the grand jury materials in the Mueller Report is directly linked to its need to evaluate the conclusions reached and not reached by the Special Counsel. In the Special Counsel Mueller’s own estimation, his Report “contains . . . that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.” Vol. I at 13. The Committee states that it needs the unredacted material to review these findings and make its own independent determination about the President’s conduct. The district court had no reason to question the Committee’s representation because the Mueller Report itself made clear why the grand jury materials in Volume I were necessary for the Committee to review and evaluate in exercise of its constitutional duty. Courts must take care not to second-guess the manner in which the House plans to proceed with its impeachment investigation or interfere with the House’s sole power of impeachment. Cf. Walter Nixon, 506 U.S. at 230–31.
Of course, courts must not simply rubber stamp congressional requests for grand jury materials. In cases where the connection between the grand jury materials and the Committee’s impeachment investigation is not obvious, further inquiry by the district court may be needed. For instance, Committee counsel could be permitted to review the unredacted grand jury materials in camera to enable a more detailed explanation of the relevance of particular witnesses, portions of transcripts, or records. See Oral Arg. Tr. 62–64 (Nov. 18, 2019). Or the district court, in the exercise of its discretion, might decide it should review the unredacted materials in camera, as occurred here at the Department’s suggestion, with respect to Volume II of the Mueller Report. See Redacted Decl. of Bradley Weinsheimer ¶¶ 5–10 (Sept. 13, 2019).
But here, where the Special Counsel stopped short of making any “ultimate conclusions about the President’s conduct,” Mueller Report, Vol. II at 8, in part to avoid preempting the House’s sole power of impeachment, see id. at 1, the Committee has established that it cannot “fairly and diligently” make a final determination about the conduct described in both volumes of the Mueller Report “without the grand jury material referenced” therein. App. for Mueller Report Grand Jury Materials, 2019 WL 5485221, at *35. In affirming the disclosure of “the entire grand jury
Accordingly, because a Senate impeachment trial qualifies as a “judicial proceeding” pursuant to
GRIFFITH, Circuit Judge, concurring: I join the opinion for the court, but I write separately to address the dissent’s argument that the district court lacked jurisdiction to compel disclosure of grand jury materials under Committee on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Feb. 28, 2020). Unlike McGahn, this case does not involve a suit between the political branches over executive-branch documents or testimony. Instead, it involves an application for access to records of the grand jury, whose disclosure the district court has traditionally controlled.
As the dissent acknowledges, grand jury records do not belong to the Executive Branch. See Dissent at 28; see also Majority at 9-10; In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 31 & n.10 (2d Cir. 1981). Regardless of whether grand jury materials are “judicial records,” see Dissent at 27-28, they do not become executive records simply because the Department of Justice stores them in file cabinets after the grand jury completes its investigation. The Department holds these records subject to the ongoing supervision of the district court. Accordingly,
The dissent insists that “possession” is the “dispositive factor” in our jurisdictional analysis: When the court holds the grand jury materials, it may hand them over; when it does not, it may not compel the Department to do so. Dissent at 20-23. This argument elevates form over substance. I do not take the dissent to dispute that the district court could have ordered the Department to deliver the grand jury materials for in camera review. Indeed, to assess particularized need, “[d]istrict courts are often required to conduct an in camera review of grand jury material requested under [Rule 6(e)’s judicial-proceeding exception].” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1074 (D.C. Cir. 1998). Had the court done so, it would have taken possession of the requested materials and could have provided them directly to the Committee, instead of ordering the Department to hand them over. See Haldeman v. Sirica, 501 F.2d 714, 715 (D.C. Cir. 1974) (en banc) (approving such a direct transfer); Dissent at 20-23 (recognizing that courts have provided grand jury materials to Congress when they possessed them). If the district court may do that, why can’t it cut itself out as the intermediary?
I understand the dissent’s concern that ordering the Executive Branch to provide grand jury records to Congress could make us a tool of the House in the exercise of its “sole power of impeachment.” Dissent at 34-39. The Judiciary’s proper place in an impeachment fight is typically on the sidelines. See Nixon v. United States, 506 U.S. 224, 228-36 (1993). But, as gatekeepers of grand jury information, we cannot sit this one out. The House isn’t seeking our help in eliciting executive-branch testimony or documents. Instead, it’s seeking access to grand jury records whose disclosure the district court, by both tradition and law, controls.
In an effort to bring this dispute under McGahn, the dissent creates a novel distinction between authorization and compulsion on which its analysis turns. But that distinction is difficult to square with our precedent and the district court’s longstanding supervisory power over the grand jury. Our circuit has never distinguished between authorization and compulsion under
All that aside, the dissent’s distinction between authorization and compulsion strikes me as untenable on its own terms. In the dissent’s view, although “[a]uthorization of disclosure is part of the district court’s supervisory power” over the grand
More broadly, I’m skeptical of the claim that the district court’s supervisory authority never extends to aiding third parties. As the dissent concedes, the district court may issue compulsory process in the form of contempt orders and grand jury subpoenas. Dissent at 16-17. But when the court holds someone in contempt for breaching the grand jury’s secrecy, it often aids not only the grand jury but also a third party whose private papers or statements have been unveiled. Moreover, the district court’s local rules allow the court “on its own motion” to “ma[ke] public” grand jury materials “upon a finding that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury.” D.D.C. LOCAL CRIM. R. 6.1; see also In re Motions of Dow Jones & Co., 142 F.3d 496, 504 (D.C. Cir. 1998). Under this rule, the district court could presumably compel the Department to make such materials available to the public. All this suggests that compulsory process—even for the benefit of third parties—falls within the district court’s traditional supervisory power.
Finally, although I agree with the dissent that we have an independent obligation to assure ourselves of our jurisdiction, we need not chase jurisdictional phantoms. The relationship between the grand jury and Article III courts is, to put it mildly, “very under-theorized,” Oral Arg. Tr. 5:21 (counsel for the Department); see also id. 62:24-63:17 (counsel for the Committee), and neither party has advanced the dissent’s novel theory of that relationship. Given the district court’s traditional supervisory power over the grand jury and the fact that grand jury records do not belong to the Executive Branch, I am satisfied that the court had jurisdiction to compel disclosure.
RAO, Circuit Judge, dissenting: The district court in this case took two distinct actions: first, it authorized disclosure of grand jury materials to the House Committee on the Judiciary, and second, it ordered the Department of Justice to release those materials to the Committee. The majority affirms both orders and treats them essentially as a single action pursuant to the district court’s supervisory power over grand juries, and therefore outside the boundaries of Article III. Yet there are important distinctions between these two actions. While I agree that the court may authorize release under
The majority dismisses the Article III inquiry because grand jury records are different and outside the traditional constitutional boundaries. It is true that the grand jury exists separate from the three departments of the federal government and that in aiding the grand jury the courts may exercise limited non-Article III powers. Yet the ancient institution of the
As an initial matter, I agree with the majority that at the time of its order, the district court did not abuse its discretion in authorizing disclosure of the grand jury materials. An impeachment investigation is “preliminar[y] to or in connection with a judicial proceeding.”
Separate from authorization, ordering DOJ to turn over the grand jury documents is an exercise of the Article III judicial power for which the Committee must have standing. The majority and the concurrence fail to identify a single case in which a court has compelled disclosure of grand jury materials to a party without standing. Waving the banner of grand jury tradition is not enough to overcome the fundamental principle of separation of powers that a court may order action by the executive branch only at the behest of a party with standing. The constitutional requirements of Article III standing do not disappear when a party seeks grand jury materials. The district court’s non-Article III supervisory power is strictly limited to actions taken by courts in aid of the grand jury. Nothing in
The Committee, however, lacks standing in this case. Under Article III, as confirmed by Raines v. Byrd, 521 U.S. 811 (1997), and our recent decision in Committee on the Judiciary of the U.S. House of Representatives v. McGahn, 2020 WL 1125837 (D.C. Cir. Feb. 28, 2020), the Committee has no standing to enforce directly its subpoena to DOJ for grand jury materials.1 The reasoning of McGahn means that the Committee also lacks standing to seek a compulsory order in a
I.
The primary question addressed by the majority concerns whether the district court could authorize disclosure to the Committee. On this point, I agree with the majority that the Committee’s petition could fit within
The Supreme Court has consistently recognized the Senate as a court of impeachment parallel to the federal courts. For example, in Mississippi v. Johnson, the Court noted that it was without authority to restrain the Senate in the conduct of an impeachment trial because the Senate was sitting “as a court of impeachment” and “this court [cannot] arrest proceedings in that court.” 71 U.S. 475, 500–01 (1866); see also Kilbourn v. Thompson, 103 U.S. 168, 191 (1880) (“The Senate also exercises the judicial power of trying impeachments.”). Similarly, we have stated that doctrines ordering the relations between “state or coordinate federal court[s]” apply to the Senate when it “sits as the constitutionally-designated court of impeachment.” Hastings v. United States Senate, 887 F.2d 332, 1989 WL 122685, at *1 (D.C. Cir. Oct. 18, 1989) (unpublished). The text of the Impeachment Trial Clause and its consistent interpretation confirm that when sitting for an impeachment trial, the Senate is a court and the trial a “judicial proceeding.”
At 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. As the majority notes, the particularized need inquiry is a “highly flexible one” that is “adaptable to different circumstances.” Maj. Op. 16 (quoting United States v. Sells Eng’g, Inc., 463 U.S. 418, 445 (1983)). Impeachment is one such circumstance to which the standards for particularized need must be uniquely adapted. Cf. In re Request for Access to Grand Jury Materials Grand Jury No. 81-1, Miami, 833 F.2d 1438, 1444 (11th Cir. 1987) (“Hastings”)
Although I agree that the authorization of disclosure was within the district court’s discretion at the time it issued its decision, the district court’s analysis was highly fact-bound.
Much has happened since the district court authorized disclosure in October. The House Judiciary Committee conducted an impeachment investigation, subpoenaed materials, and heard from witnesses. The House voted in favor of two articles of impeachment against President Trump. The Senate then conducted an impeachment trial in which it considered the House’s evidence, determined that no further evidence was needed, and entered a judgment of acquittal.
In light of these developments, remand is necessary for the district court to address whether authorization is still warranted. A similar analysis of the Committee’s application today requires ascertaining whether such investigations are ongoing and, if so, whether their “primary purpose” is to obtain the grand jury materials for impeachment. The Committee’s request must fit within one of the
Similarly, remand is necessary for the district court to consider whether the Committee continues to have a particularized need for the requested grand jury materials, or whether the intervening developments have abrogated or lessened the Committee’s need for these records. Once again, this requires a fact-intensive inquiry. In re Sealed Case, 801 F.2d 1379, 1381 (D.C. Cir. 1986) (“[A] district court [considering a Rule 6(e) application] must ‘weigh carefully the competing interests in light of the relevant circumstances and standards.’” (quoting Sells Eng’g, 463 U.S. at 443)). In order to assess the Committee’s ongoing need for these materials, additional factual information is needed regarding the status of the Committee’s investigations. The majority relies on assertions made in briefs filed by the Committee before the impeachment trial. Maj. Op. 16–18. This generalized interest standing alone does not speak to the fact-bound inquiry regarding the ongoing purpose and need for the materials. Remand is thus necessary for the district court to
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A reasonable observer might wonder why we are deciding this case at this time. After all, the Committee sought these materials preliminary to an impeachment proceeding and the Senate impeachment trial has concluded. Why is this controversy not moot? The majority simply turns a blind eye to these very public events and the parties have not submitted any additional briefs; however, a few observations are worth noting. Mootness is a constitutional doctrine following from the Article III requirement that courts decide only live cases and controversies. See Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013). Mootness, however, does not impact the district court’s authorization of disclosure because authorization is a discretionary action under
II.
The constitutional problem presented by this case pertains not to authorization of disclosure, but to the separate question of whether the district court had jurisdiction to compel DOJ to release the grand jury materials to the Committee. In the months leading up to the House’s formal initiation of an impeachment inquiry, the Judiciary Committee issued a subpoena to the Department of Justice for the grand jury materials relating to Special Counsel Robert S. Mueller III’s investigation. U.S. Dep’t of Justice, Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017); see also J.A. 190–97 (House Judiciary Committee Subpoena to Attorney General William P. Barr (Apr. 18, 2019)). When the Department refused to comply and cited
The Committee’s
The crux of my analysis turns on fundamental principles of separation of powers. First, the mere fact that this case involves a request for grand jury materials does not alter the basic constitutional requirement that a court order directing the executive branch to produce documents to a third party is an exercise of the Article III power. Here, DOJ has possession of the grand jury records under the terms of
The majority’s entire jurisdictional argument rests on the fact that the question “[was] not raised by either party.” Maj. Op. 26; see also Concurring Op. 4 (“[N]either party has advanced the dissent’s novel theory of that relationship.”). Yet DOJ in fact distinguishes between authorizing and ordering disclosure when it asserts that ordering disclosure is an exercise of Article III power, but authorization of disclosure is not. See DOJ Supp. Br. 3–6. In any event, we have an independent obligation to ensure jurisdiction before exercising the judicial power. Here, the district court’s order to DOJ for disclosure of the grand jury materials required an exercise of Article III power, because nothing in the grand jury context alters the court’s power in relation to the executive branch. Suspending the standing requirements of Article III in this context would constitute an exception to justiciability not supported by the Constitution,
A.
The Committee and the Department argue that the district court’s order does not implicate Article III because it was entered pursuant to the court’s supervisory power over grand juries. It is true as a general matter that the supervisory power does not implicate “the essential attributes of the judicial power.” United States v. Seals, 130 F.3d 451, 457 (D.C. Cir. 1997) (citation and quotation marks omitted). But the supervisory power “is a circumscribed one,” id., that cannot be extended by federal courts in a manner that transgresses constitutional or statutory limits, see Bank of Nova Scotia v. United States, 487 U.S. 250, 254–55 (1988) (“[E]ven a sensible and efficient use of the supervisory power … is invalid if it
conflicts with constitutional or statutory provisions. (quotation marks omitted)). In United States v. Williams, 504 U.S. 36, 50 (1992), the Court
The district court‘s supervisory power cannot override constitutional requirements with respect to parties outside the grand jury process.3 A judicial order compelling a party to take an action, be it a mandatory injunction, writ of mandamus, or other similar form of compulsory relief has always been understood as an exercise of the Article III judicial power. See, e.g., Georgia v. Stanton, 73 U.S. 50, 75–76 (1867) ([I]n order to entitle the party to the [injunctive] remedy, a case must be presented appropriate for the exercise of judicial power.). A court may therefore issue compulsory orders only at the behest of a party with Article III standing. See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (To seek injunctive relief, a plaintiff must show that he is under threat of suffering injury in fact that is concrete and particularized.).
The judicial power is particularly implicated when a court issues a compulsory order to the executive branch. See Kendall v. United States ex rel. Stokes, 37 U.S. 524, 618 (1838) ([T]he authority to issue the writ of mandamus to an officer of the United States, commanding him to perform a specific act, required by a law of the United States, is within the scope of the judicial powers of the United States.). A court may direct the executive branch only when exercising its Article III powers. As the Court held in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 217 (1974), a plaintiff must present more than generalized grievances to seek to have the Judicial Branch compel the Executive Branch to act in conformity with constitutional provisions. The Court emphasized the interrelation of standing and separation of powers and explained that ruling on constitutional issues in the abstract would open the Judiciary to an arguable charge of providing government by injunction. Id. at 222.
The courts may interfere with the actions of a co-equal branch only when deciding a justiciable case or controversy. Consistent with these basic principles, during the course of these impeachment investigations, House Committees have not disputed that standing is required to enforce legislative subpoenas directed to the executive branch. Indeed, standing has been the key issue in recent congressional attempts to seek judicial enforcement of congressional subpoenas.4
B.
Despite these fundamental constitutional requirements, the Committee maintains it is counterintuitive to consider the requirements
1.
The text and structure of
Moreover, the Rule confers substantial authority on the government attorneys, not only in serving as custodian over grand jury materials, but in many instances allowing government attorneys to disclose without court permission. See
The government attorneys and the district court together play a gatekeeping and supervisory role over grand jury materials. Both the prosecutor and the district court have an institutional relationship to the grand jury; yet the Rule does not change other constitutional arrangements between the courts and the Executive. Nothing in
The majority‘s position, however, entrusts grand jury secrecy exclusively to the courts—allowing the district court not only to authorize, but to compel release. Maj. Op. 26. By contrast, DOJ‘s position that impeachment does not fit within the judicial proceeding exception would leave grand jury secrecy solely to the Executive in this political context. The grand jury, however, is not an appendage of any one branch.
2.
By contrast, third parties who seek grand jury information stand outside of the historic relationship between the grand jury and the court. As discussed below, there is no longstanding tradition of courts ordering disclosure of grand jury materials to third parties. See infra 33–35. When third parties seek the disclosure of such presumptively secret information, they cannot rely on the court‘s supervisory authority because such authority extends only to aiding the grand jury. For instance, we have drawn a sharp distinction between grand jury witnesses, who are part of the grand jury process, and third parties, who are not. See In re Grand Jury, 490 F.3d 978, 988 (D.C. Cir. 2007) (Preventing a third party from reviewing a witness‘s grand jury testimony is essential to guarantee secrecy to witnesses; preventing the witness from reviewing the witness‘s own testimony is entirely unnecessary to guarantee secrecy to witnesses.); United States v. Moussaoui, 483 F.3d 220, 237 (4th Cir. 2007) (We are certainly unaware of any long unquestioned power of federal district courts to order the Government to disclose non-public materials given to the defense in a criminal trial to third-party civil plaintiffs involved in litigation in another jurisdiction. (internal citation and quotation marks omitted)). Even the prosecutor, who may issue subpoenas on behalf of the grand jury, must ground his authority in the grand jury investigation, not the prosecutor‘s own inquiry because [f]ederal prosecutors have no authority to issue grand jury subpoenas independent of the grand jury. Lopez v. Dep‘t of Justice, 393 F.3d 1345, 1349–50 (D.C. Cir. 2005).
Only the grand jury and those who are part of the grand jury process—not a third party—may petition a court for compulsory process pursuant to the court‘s limited supervisory power.5 The supervisory power of the district court exists to serve the functions of the grand jury, but the district court cannot use that power to evade the requirements of Article III or to expand judicial authority over the executive
C.
This is not the first time Congress has sought grand jury information in connection with an impeachment proceeding. The handful of historical examples demonstrate that Congress has received grand jury materials; however, courts have not compelled disclosure of materials from the executive branch. Since the enactment of
For example, the Eleventh Circuit upheld an order authorizing disclosure to the House Judiciary Committee pursuant to the judicial proceeding exception during the impeachment of Judge Alcee Hastings. See generally Hastings, 833 F.2d 1438. Authorization was all that was necessary because DOJ stated that it ha[d] no objection to this disclosure to the Committee. Id. at 1441–42. Similarly, in 2007, the House Judiciary Committee petitioned for disclosure of grand jury materials relevant to its impeachment inquiry into the conduct of Judge Thomas Porteous. See In re Grand Jury Investigation of U.S. Dist. Judge G. Thomas Porteous, Jr., No. 09-mc-04346 (E.D. La. Aug. 6, 2009). The district court held that the Committee demonstrated a particularized need and authorized the Department to disclose the materials. Id. at *6. DOJ did not oppose the request, id. at *2, so no compulsory process was necessary.
Other courts have recognized that Congress should rely on legislative process to secure grand jury papers, even after authorization of disclosure. In In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299 (M.D. Fla. 1977). Only after concluding the Chairman had standing,7 the court determined that it would enforce the authorization of disclosure, but nonetheless request[ed] that the Subcommittee issue its own subpoena duces tecum to the United States Attorney for the specific documents desired. Id. at 1307 (emphasis added) (internal citation omitted). The court stressed that the House should utilize the legislative process to enforce its legislative demand for documents from the executive branch. Id. at 1307–08. Respect for the political process counseled in favor of withdrawing the judiciary from such clashes to allow the political branches to rely upon their own processes to resolve disputes over grand jury materials.
Both before and after
* * *
Even in the grand jury context, we are obliged to ensure that a dispute is within our Article III authority. Nothing in
III.
Because a compulsory order to the executive branch in aid of Congress is an essential attribute of the Article III judicial power, the Committee must establish standing in order to obtain judicial relief. This Part explains why the Committee lacks standing to seek compulsory process against the executive branch for the grand jury materials. First, in light of Raines and our court‘s recent decision in McGahn, the Committee would not have standing to seek judicial enforcement of its subpoena to DOJ. Because this case similarly presents a purely interbranch conflict, the Committee has no standing to seek a judicial order compelling DOJ to produce the same papers in the context of a
A.
[T]he law of [Article] III standing is built on a single basic idea—the idea of separation of powers. Raines, 521 U.S. at 820 (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)). The Article III judicial power extends only to cases and controversies, disputes that present concrete and particularized injuries to the rights of individuals. A rigorous standing analysis restricts courts to disputes traditionally within the judicial power. The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94 (1998). The Court often decides interbranch conflicts, but only when such conflicts implicate the rights of private parties. See Raines, 521 U.S. at 820. Conflicts between the executive branch and Congress are generally settled in the political back and forth, because each branch has the constitutional motives and means to defend its own powers and resist encroachments of the others. The Federalist No. 51, at 268–69 (James Madison).
When Congress brings suit against the executive branch, we must be especially careful to ensure that the suit is properly within our jurisdiction. As we recently explained, we lack authority to resolve disputes between the Legislative and Executive Branches until their actions harm an entity beyond the [Federal] Government. Without such a harm, any dispute remains an intramural disagreement about the operations of government that we lack power to resolve. McGahn, 2020 WL 1125837, at *3 (quoting Raines, 521 U.S. at 834 (Souter, J., concurring in the judgment)). In McGahn, we held that the Committee lacks standing to invoke the jurisdiction of the federal courts to enforce its subpoena for the testimony of former Counsel to the President Donald McGahn. Id. at *7. McGahn made clear that generalized disputes between Congress and the Executive are not justiciable because standing in interbranch disputes is at odds with the constitutional separation of powers, the nature of the judicial power, and historical practice. Id.11
The majority insists that this case is unlike other inter-branch disputes and distinguishable from McGahn because the grand jury is an appendage of the court and the Department of Justice is simply the custodian of the grand jury materials. Maj. Op. 9, 26. The majority further maintains that it is the district court, not the Executive or the Department, that controls access to ... grand jury materials. Id. at 10. These sweeping claims cannot be squared with
The text and structure of Rule 6 make clear that the district court and the executive branch share responsibility for maintaining grand jury secrecy and for overseeing appropriate disclosures. As discussed above, government attorneys have authority to disclose in some circumstances without court approval; in other circumstances, the government attorney must approve the disclosure. See, e.g.,
Thus, although the grand jury relies on both court and prosecutor for the exercise of its functions, it is an appendage of neither. The grand jury exists apart from all three branches. See Williams, 504 U.S. at 47 ([The grand jury] has not been textually assigned, therefore, to any of the branches described in the first three Articles. It ‘is a constitutional fixture in its own right.’ (quoting Nixon v. Sirica, 487 F.2d 700, 712 n.54 (D.C. Cir. 1973))); Chanen, 549 F.2d at 1312 ([T]he functions of the grand jury are intimately related to the functions of court and prosecutor .... But ... the grand jury is not and should not be captive to any of the three branches. (internal citations omitted)). A district court may supervise the grand jury, but such supervision does not change the division of power between the court and the political branches.
Because this case is fundamentally an interbranch dispute, the House may seek judicial process against the executive branch only if it can demonstrate Article III standing. The Committee‘s claim must fit within the increasingly narrow exceptions for congressional standing. Here, the Committee asserts no individual harm to a lawmaker‘s personal interests. Cf. Powell v. McCormack, 395 U.S. 486 (1969) (finding a justiciable case or controversy for elected Member of Congress to sue for wrongful exclusion from Congress, which deprived him of salary and seat). The Committee here is an institutional plaintiff representing the House of Representatives. Comm. Supp. Br. 11 (quoting Ariz. State Legislature v. Ariz. Indep. Redistricting Comm‘n, 135 S. Ct. 2652, 2664 (2015)); see also H.R. Res. 430, 116th Cong. (2019) (authorizing House Judiciary Committee to petition for disclosure of the grand jury materials at issue pursuant to Federal Rule of Criminal Procedure 6(e)). Although the Court has suggested some limited standing for state legislatures raising institutional interests, McGahn forecloses institutional standing for Congress in suits against the executive branch. See 2020 WL 1125837, at *3–8. McGahn, however, leaves open the question of whether a statute authorizing a suit like the Committee‘s would be constitutional. Id. at *15. It is doubtful whether this question in fact remains open after Raines, where the Court noted [i]t is settled that Congress cannot erase Article III‘s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing. 521 U.S. at 820 n.3. Nonetheless, this remains the only possible path for the Committee‘s standing in this case. Assuming a statute might be able to create standing in an interbranch dispute, I analyze whether
B.
Congress may elevat[e] to the status of legally cognizable injuries concrete, de facto
The Committee maintains that it has standing because
jury is the exception and not the rule,” and then proceeds to “set[] forth in precise terms to whom, under what circumstances and on what conditions grand jury information may be disclosed.” McKeever, 920 F.3d at 844 (emphasis added) (citation and quotation marks omitted).
The decision to authorize the release of grand jury materials in connection with a judicial proceeding is thus committed to the sound discretion of the supervising court, which “may” authorize disclosure “at a time, in a manner, and subject to any other conditions that it directs.”
Rule 6(e) is thus unlike other statutes and regulations that require the disclosure of certain categories of information, such as the Freedom of Information Act. See
By contrast, Rule 6(e)(3) creates no such injury because it does not afford any concrete right. Rather, the Rule is purely permissive, providing that the district court “may authorize disclosure” of grand jury materials. The existence of an enumerated exception to grand jury secrecy under Rule 6(e)(3) is only the starting point. After determining an exception applies, a supervising court must determine, in its discretion, whether disclosure of the grand jury materials may be warranted under the circumstances and whether the applicant has demonstrated a “particularized need” for the materials. See, e.g., Sells Eng‘g, 463 U.S. at 442-43. Even this permissive standard refers only to authorization of disclosure, not to disclosure itself. Moreover, the Court has never held that Rule 6(e)(3) creates a private right of action for a third party to obtain injunctive relief. See Pittsburgh Plate Glass, 360 U.S. at 399. Although Rule 6(e)(3) allows the court to remove the shield of grand jury secrecy through authorization, a third party must look elsewhere for a right of action to compel disclosure. See Rutherford, 509 F.3d at 793 (“[Rule] 6(e)(3)(E)(i), pertaining to the disclosure of grand jury documents, cannot be used to mandate such release.“).
It is instructive that we have held other parts of Rule 6(e) can be enforced by third parties through a private right of action. For example, a third party has a “very limited” private right of action to enforce Rule 6(e)(2)‘s secrecy requirement by seeking “injunctive relief or civil contempt of court through the district court supervising the grand jury.” In re Sealed Case No. 98-3077, 151 F.3d at 1070 (quotation marks omitted). Rule 6(e)(2) uses the mandatory language “must not disclose,” which courts have interpreted as vesting a private right that may be judicially redressable. Rule 6(e)(3), unlike Rule 6(e)(2), does not provide a legal entitlement to compel production of grand jury materials.13 Thus, a third party such as the Committee that seeks a court order to compel production must demonstrate an independent legal
or possess a judicial device for compelling the materials, such as a subpoena. See Rutherford, 509 F.3d. at 795 (“[Rule 6(e)] does not authorize third parties to obtain grand jury materials from the government against the government‘s objections without a proper device for compelling the documents, such as a subpoena duces tecum.“).
In sum, Rule 6(e) fails to create a legally cognizable informational right, the denial of which might constitute an injury sufficient to support congressional standing. I therefore need not opine on the broader question left open by McGahn regarding whether a statute can confer such standing in the first place.
C.
In addition to conflicting with McGahn and the text of Rule 6(e)(3), the Committee‘s “attempt to litigate this dispute at this time and in this form is contrary to historical experience.” Raines, 521 U.S. at 829. This type of interbranch dispute is not one “traditionally thought to be capable of resolution through the judicial process.” Allen, 468 U.S. at 752 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)). The fact that Congress seeks grand jury materials does not erase the constitutional boundaries between the judiciary and Congress with respect to impeachment, nor does it displace the separate legislative processes that Congress has for obtaining information.
The Committee initially sought authorization of disclosure for the Mueller grand jury materials preliminary to an impeachment proceeding. Yet impeachment is a separate process that occurs in the House and the Senate, without the interference or involvement of the courts. Parallel to the ordinary criminal process, the Constitution vests the power of impeachment and power to try all impeachments solely in the House and Senate respectively.
The text and structure of the Constitution‘s provisions regarding the impeachment power confirm the separation of the courts from this process. The “risks from overlapping powers reach their apogee in a presidential impeachment trial.” (Walter) Nixon v. United States, 938 F.2d 239, 242-43 (D.C. Cir. 1991), aff‘d, 506 U.S. 224. Thus, courts should not interfere with the exercise of the impeachment powers, and the House does not have a positive constitutional right to assistance from the other branches in the exercise of its sole power of impeachment. See (Walter) Nixon, 506 U.S. at 231 (interpreting the word “sole” to exclude any judicial “assistance or interference” in an impeachment proceeding (citation omitted)). The House must look to its own powers or those of the court of impeachments, the Senate, for compulsory aid in an impeachment investigation.
History confirms that both Congress and the courts have maintained the separation between impeachment and the judicial process. In the only three previous presidential impeachment investigations, as well as other impeachments, the House has never resorted to the courts to compel materials from the executive branch. As in Raines, “[i]t is evident from several episodes in our history that in analogous confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power.” 521 U.S. at 826; see also McGahn, 2020 WL 1125837, at *6 (“Neither interbranch disputes (in general) nor interbranch information disputes (in particular) have traditionally been resolved by federal courts.“).
During the impeachment investigation of President Nixon, the House Judiciary Committee recognized that seeking judicial assistance would likely weaken the authority of the House as well as exceed the judicial power of the courts. In its impeachment report, the Committee held that “it would be inappropriate to seek the aid of the courts to enforce its subpoenas against the President” because it would undermine “the constitutional provision vesting the power of impeachment solely in the House of Representatives.” H.R. Rep. No. 93-1305, at 210 (1974) (noting also the “express denial by the Framers of the Constitution of any role for the courts in the impeachment process“). The Committee was concerned that judicial involvement would undermine its powers because “the court would necessarily have to determine whether the subpoenaed material was reasonably relevant to the inquiry.” Id. at 212. The Committee also raised concerns that the courts would not have “adequate means” to enforce a congressional subpoena because the only viable remedy for the President‘s noncompliance would be impeachment, which “would ultimately be adjudicated in the Senate.” Id. The House agreed and, in line with this position, did not seek court orders to obtain grand jury materials. Instead, it received most Watergate grand jury materials by order of the President and on the petition of the Watergate grand jury, without objection from the executive branch. See Letter from Peter W. Rodino, Jr., Chairman, House Judiciary Committee, to John J. Sirica, U.S. District Judge (Mar. 8, 1974); In re Report & Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to House of Representatives, 370 F. Supp. at 1221.
Similarly, during the impeachment of President Clinton, the House Judiciary Committee never resorted to the courts to compel production from the executive branch and instead relied on the addition of an article of impeachment alleging insufficient responses from the President to numerous interrogatories issued by the Committee. See generally H.R. Rep. No. 105-830 (1998). Moreover, neither the Judiciary Committee in the impeachment inquiry nor the Senate Whitewater Committee resorted to the courts to receive grand
The impeachment of Andrew Johnson also conforms to this understanding. The “tedious job of taking testimony and searching through documents” was conducted solely by the House, with no mention of judicial involvement. Michael Les Benedict, “The Impeachment of President Andrew Johnson, 1867-68” in Congress Investigates at 263-64; cf. Mississippi, 71 U.S. at 501 (noting it would be a “strange spectacle” for the Court to attempt to “restrain by injunction the Senate of the United States from sitting as a court of impeachment“).
These historical precedents further reinforce the availability and effectiveness of legislative process to enforce informational requests. “Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President‘s nominees, harness public opinion, delay or derail the President‘s legislative agenda, or impeach recalcitrant officers.” McGahn, 2020 WL 1125837, at *5. The ultimate form of accountability for the President is an article of impeachment. Impeachment is a power the House must exercise pursuant to its own processes and standards, and self-help is always available.
Moreover, when sitting as a court of impeachment, the Senate may issue the same compulsory process and orders as any other court. It may issue warrants, summons, and subpoenas, and even arrest and hold individuals who fail to comply. Indeed, the Senate Rules provide that the Senate, not the courts, makes determinations regarding relevancy and compulsory process. See S. Res. 479, 99th Cong. (1986), reprinted in Senate Manual § 176, 113th Cong. (2014).15
Although the Committee now seeks to reassign the Senate‘s authority to the judiciary, this court has observed that the Article III courts must apply the same principles of comity and abstention to the Senate sitting as “the constitutionally-designated court of impeachment” as it would to any other “coordinate federal court.” Hastings, 887 F.2d 332, 1989 WL 122685, at *1; see also id. (“[W]e have not found any case in which the judiciary has issued injunctive or declaratory relief intercepting ongoing proceedings of the legislative branch.“). We should decline to issue compulsory process in an impeachment trial committed to the “sole” discretion of the Senate.
* * *
Congress has historically relied upon its own constitutional powers to enforce subpoenas and informational requests against the executive branch. See McGahn, 2020 WL 1125837, at *7 (“Principles and practice thus agree: The Committee may not invoke the jurisdiction
IV.
Fundamental principles of separation of powers and the relation of the grand jury to the three branches necessarily lead to the conclusion that the Committee cannot fight this interbranch dispute through the courts. Although it is well established that a court exercises the Article III judicial power when issuing a compulsory order to the executive branch, the fact that the Committee here seeks grand jury materials has obscured the ordinary justiciability requirements. When pursuing an impeachment investigation, the Committee may petition for authorization of disclosure under the “judicial proceeding” exception in Rule 6(e)(3). Nothing in the Rule, however, allows the district court to compel the executive branch to disclose grand jury materials to a party that lacks standing. The district court‘s supervisory power over the grand jury cannot expand judicial authority over the executive branch.
The majority refuses to consider the first and most fundamental question presented in every case—namely whether we have the power to decide it. Although the majority and concurrence refer in the abstract to the supervisory power, they cite not a single case in which a court has ordered the executive branch to release grand jury materials to a party without standing. Our duty to ensure that we have jurisdiction cannot be brushed aside by the expedient agreement of the executive branch and the House to support the Committee‘s standing. “[E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.” Steel Co., 523 U.S. at 94 (quotation marks omitted). Acquiescence by the political branches cannot erase constitutional boundaries. See, e.g., Free Enter. Fund. v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 497 (2010) (“[T]he separation of powers does not depend on ... whether ‘the encroached-upon branch approves the encroachment.‘” (quoting New York v. United States, 505 U.S. 144, 182 (1992))); Clinton v. New York, 524 U.S. 417, 447 (1998) (support from both political branches for the Line Item Veto Act could not override the “finely wrought procedure commanded by the Constitution” (quotation marks omitted)); INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (“The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review.“).
In a similar vein, the courts should not defer to the political branches with respect to protecting the integrity of the Article III judicial power. Inevitably, there will be times when institutional interests lead Congress or the Executive to seek out the courts to resolve messy political matters. In this case, the House repeatedly asserted
Moreover, the grand jury context does not alter the justiciability requirements of Article III. The role of the courts in our system of separated powers is to preserve individual rather than institutional rights. See Marbury, 5 U.S. (1 Cranch) at 170 (“The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.“); McGahn, 2020 WL 1125837, at *3 (“[T]he Committee‘s dispute with the Executive Branch is unfit for judicial resolution because it has no bearing on the ‘rights of individuals.‘” (quoting Marbury, 5 U.S. (1 Cranch) at 170)); see also Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 884 (1983). The Article III judicial power does not include the “amorphous general supervision of the operations of government.” Raines, 521 U.S. at 829 (citation and quotation marks omitted). Our Article III courts are confined to the less flashy but nonetheless vital “species of contest which is termed a lawsuit.” Barnes, 759 F.2d at 52 (Bork, J., dissenting) (quoting 1 A. De Tocqueville, Democracy in America 106-07 (T. Bradley ed. 1945)); cf. Spokeo, 136 S. Ct. at 1551 (Thomas, J., concurring) (“These limitations [on standing] preserve separation of powers by preventing the judiciary‘s entanglement in disputes that are primarily political in nature. This concern is generally absent when a private plaintiff seeks to enforce only his personal rights against another private party.“).
In our constitutional democracy, most decisions are left to the people and their representatives. The courts play an essential role in saying what the law is, but they are not all-purpose umpires, available to referee any dispute between the other branches. Unless presented with a proper case or controversy, the courts do not advise or review the acts of the coordinate branches or the disputes that may arise between them. As discussed above, these separation of powers concerns are at their height in the impeachment context. The courts should have no part of assisting or interfering with impeachment proceedings. See (Walter) Nixon, 506 U.S. at 233-34. Institutional disputes between the executive branch and Congress often pertain to political arrangements and are fought under political standards, wholly outside the purview of the courts.
Any doubt regarding the unsuitability of the courts for this interbranch dispute should be put to rest in the circumstances of this case. The Senate trial of President Trump concluded more than a month before publication of this opinion. Even when acting on an expedited basis, courts cannot move with the alacrity and speed of the political process. And indeed, that process has moved on without our decisions. The flurry of supplemental filings recounting the litigating positions of the President and the House in the impeachment trial, and arguing that such positions should affect our decisionmaking, demonstrates the practical impediments to judicial resolution of these issues.17 In addition to the constitutional limits of the judicial power, the very structure of the judiciary reinforces that impeachments and related interbranch information disputes are not the business of the courts.
* * *
The grand jury context does not eliminate the limits on the judicial power essential to the Constitution‘s separation of powers. Because I conclude that the House lacks standing to seek compulsory process against the executive branch in this context, I would vacate the part of the district court‘s order directing DOJ to disclose the grand jury materials. On the question of authorization, in light of changed circumstances, I would remand to the district court to evaluate in the first instance whether the Committee can demonstrate that it continues to have a “particularized need” for these grand jury materials “preliminarily to” impeachment proceedings. For the foregoing reasons, I respectfully dissent.