Thread: Developments in the House’s case to get Mueller’s grand jury materials

The House won in District Court and the Circuit Court upheld that victory in March. DOJ will be required to turn over Mueller’s grand jury materials to the House unless it can get a “stay” by May 1.

DOJ could have requested an en banc rehearing with the entire DC Circuit Court, which would have bought them a full month of delay. Instead, they filed yesterday with the DC Circuit asking for a “stay” (meaning a delay) to allow them time to take their case to SCOTUS.

If the DC Circuit Court is not inclined to grant DOJ a several-month-long stay to file its case with SCOTUS, DOJ has asked for a shorter stay to allow them to request a stay directly from SCOTUS.

Let’s pause and think about why they took this approach.

DOJ could have skipped this step and requested a stay directly from SCOTUS, but SCOTUS would have either denied it (meaning DOJ loses) or put the case on a fast track with a hearing in July. DOJ doesn’t like those options, so they are looking for a more palatable option.

DOJ appears to think the DC Circuit Court panel that ruled against them in the Muller Grand Jury case is still a pretty friendly panel for them, and they appear to be hoping the panel will give them several months to file at SCOTUS, allowing them to push this past the election.

There are three ways the DC Circuit Court could rule:

1. Deny the stay and force DOJ to turn over the grand jury materials.

2. Deny the stay, but grant a shorter stay to allow DOJ to request a longer stay from SCOTUS.

3. Grant the stay and give DOJ time to file at SCOTUS.

The DC Circuit Court panel that will decide this stay request is the same one that ruled against DOJ in March: Rogers, Rao, and Griffith. Rogers definitely will deny the stay and Rao (a terrible, Trump-appointed judge) definitely will grant the stay. Griffith is the swing vote.

Griffith wrote the decision giving the House the win in this case, and he came down pretty hard on DOJ. But Griffith is a hard core, Federalist Society judge, and he announced last month he’s retiring later this year, so he’s a total wild card.

The DC Circuit Court will need to rule on this next week. The House will file a motion this week opposing DOJ’s stay request, and pointing out that this case is part of an impeachment inquiry and time is of the essence.

I’m guessing the panel will deny the stay request but grant a short stay to allow DOJ to request a longer stay from SCOTUS. I think we are looking at a SCOTUS hearing in July with a ruling in August-September. So you can see why buying a few weeks or months of delay matters.

It’s unusual for SCOTUS to hear a case in July but, because this case was brought as part of an impeachment inquiry, it *should* be placed on a fast track at SCOTUS and should get heard outside the Court’s normal hearing schedule. But, of course, I can’t promise you that.

Here’s the biggest question for me: If my timeline is correct and SCOTUS rules for the House in August-September, will DOJ drag its feet and claim it needs until after the election to turn over Mueller’s grand jury materials to the House? Seems like a distinct possibility.

Before I wrap this up, a quick word about Mueller’s grand jury materials. These materials include all redacted material in the Mueller Report, plus all the FBI interviews and other materials underlying the Mueller Report. Expect major bombshells, *IF* we can get them in time...

Final note: This case is separate from DC District Court Judge Walton’s case. Walton is reviewing the Mueller Report redactions and *could* rule at a hearing on June 18 that he will reveal some of the redactions.

The House’s case is a far more likely winner than the Walton case.