No.

19A1035

IN THE
Supreme Court of the United States
_______________
UNITED STATES DEPARTMENT OF JUSTICE,
Applicant,

v.

COMMITTEE ON THE JUDICIARY OF THE

UNITED STATES HOUSE OF REPRESENTATIVES
_______________
On Application for Stay of the Mandate of the
United States Court of Appeals for the District of Columbia Circuit
_______________
OPPOSITION TO APPLICATION FOR A STAY OF MANDATE
_______________

Annie L. Owens Douglas N. Letter

Joshua A. Geltzer Counsel of Record
Mary B. McCord Todd B. Tatelman
Daniel B. Rice Megan Barbero
INSTITUTE FOR CONSTITUTIONAL Josephine Morse
ADVOCACY AND PROTECTION Adam A. Grogg
Georgetown University Law Center Jonathan B. Schwartz
600 New Jersey Avenue N.W. OFFICE OF GENERAL COUNSEL
Washington, D.C. 20001 U.S. HOUSE OF REPRESENTATIVES
(202) 662-9042 219 Cannon House Building
ao700@georgetown.edu Washington, D.C. 20515
(202) 225-9700
douglas.letter@mail.house.gov

Counsel for Committee on the Judiciary of the

United States House of Representatives
 TABLE OF CONTENTS

STATEMENT ................................................................................................................. 3

ARGUMENT .................................................................................................................. 9

I. This Court Should Deny A Stay Of The Mandate Pending Certiorari ............. 9

A. DOJ Cannot Show A Reasonable Probability That This Court Will

Grant Certiorari ..................................................................................... 10

B. DOJ Cannot Establish A Fair Prospect That This Court Will

Reverse The Court Of Appeals’ Decision ............................................... 13

1. The Court of Appeals Correctly Determined That A Senate

Impeachment Trial Is A Judicial Proceeding ............................. 14

2. The Court of Appeals Faithfully Applied This Court’s

Particularized-Need Test To The Impeachment Context .......... 19

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 .............. 26

II. If The Court Grants A Stay, It Should Order Expedited Briefing On

DOJ’s Forthcoming Petition For Certiorari ..................................................... 30

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

demonstrate that this Court’s review would be warranted here.

This case involves the correctness of an order by Chief Judge Howell (based

in part on an exercise of her discretion) for disclosure to the House Committee on

the Judiciary of a limited set of grand-jury materials for use in the Committee’s

ongoing Presidential impeachment investigation. The decision by the court of

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

proceeding” for purposes of one of the exceptions to grand-jury secrecy articulated in

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

by this Court, particularly given that it can be accomplished through a rule

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

connection with impeachment proceedings.

 Furthermore, any harm to DOJ from the limited disclosure to the Committee

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

grand-jury investigation at issue is done. In addition, the Committee has adopted

procedures—which both the district court and the court of appeals found

sufficient—to protect the confidentiality of the material. And, tellingly, DOJ makes

no argument that a stay of disclosure to the Committee is necessary to protect

ongoing criminal investigations.

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

exercise its weighty constitutional responsibility. The Committee first requested

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

ability to complete its impeachment investigation during the current Congress—

which ends not long thereafter on January 3, 2021.

1 See Order, 589 U.S. — (Mar. 19, 2020),

https://www.supremecourt.gov/orders/courtorders/031920zr_d1o3.pdf.

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 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

grant or deny that petition during this Term.

STATEMENT

This case concerns a district court order under Federal Rule of Criminal

Procedure 6(e) directing disclosure of a limited amount of grand-jury material

bearing on the Committee’s impeachment investigation of President Donald J.

Trump for misconduct detailed in Special Counsel Robert Mueller’s Report.

1. “The Russian government interfered in the 2016 presidential election in

sweeping and systematic fashion.” Robert S. Mueller III, Report on the

Investigation into Russian Interference in the 2016 Presidential Election, Vol. I at 1

(2019) (Mueller Report), https://www.justice.gov/storage/report.pdf. In July 2016,

the Federal Bureau of Investigation (FBI) began investigating this unprecedented

foreign interference in the American electoral process. Id. In May 2017, the Acting

Attorney General appointed Mueller to serve as Special Counsel to continue the

FBI’s investigation, determine “whether individuals associated with the Trump

Campaign [had] coordinat[ed] with the Russian government,” id., and investigate

other matters “aris[ing] directly from the investigation,” including whether the

President had obstructed justice, id., Vol. I at 8.

At the conclusion of his investigation in March 2019, Special Counsel Mueller

produced a Report describing his findings. Among other things, the Report

concluded that President Trump’s conduct raised serious questions “about whether

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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

short of determining whether President Trump obstructed justice in violation of

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

not want to “preempt constitutional processes for addressing presidential

misconduct”—i.e., impeachment. Id.

The Attorney General released a redacted version of the report to Congress

and to the public in April 2019. That version of the Mueller Report contains

numerous redactions, including redactions made under Federal Rule of Criminal

Procedure 6(e) to protect the secrecy of grand-jury material. These redactions bear

on whether the President committed impeachable offenses by obstructing the FBI’s

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

grand-jury material in Volume II of the Mueller Report).

2. After the Attorney General released the redacted Mueller Report to

Congress, but declined a series of requests from the Committee for the redacted

material, the Committee issued a subpoena for an unredacted version of the

Mueller Report and certain grand-jury material underlying those redactions. DOJ

refused to comply, but it allowed a limited number of Members of Congress and

4
certain staff to confidentially review all of the redacted material except what DOJ

considered to be grand-jury material.

Although DOJ had long taken the position that Rule 6(e)’s provision

authorizing disclosures “preliminarily to … a judicial proceeding” permits disclosure

of grand-jury material to Congress for use in impeachment, DOJ reversed course in

this matter and for the first time asserted that Rule 6(e) forbids disclosure to the

Committee in connection with an impeachment. See App. 117a-18a n.30.

In June 2019, the House adopted a resolution authorizing the Committee to

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

confidential materials during the Nixon impeachment investigation, limit staff

access to grand-jury material; require storage of such material in a secure location;

and provide that such material may not be publicly disclosed absent a majority vote

by the Committee. See id.

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

grand-jury materials “preliminarily to or in connection with a judicial proceeding.”

The Committee requested release of three categories of withheld grand-jury

material: (1) portions of the Mueller Report redacted under Rule 6(e); (2) any

underlying grand-jury transcripts or exhibits referenced in those redactions; and

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

Rule 6(e)’s provision authorizing disclosure preliminarily to “a judicial proceeding”

encompasses disclosures in advance of a Senate impeachment trial. App. 96a-137a.

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,

and Supreme Court precedent,” App. 101a.

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

investigation, App. 140a, outweighed any interests in maintaining secrecy, which

were diminished once “the Special Counsel’s investigation, and attendant grand

jury work, concluded,” App. 146a. It therefore ordered a “focused and staged

disclosure” of the first two categories of material, App. 139a, to be followed, as

necessary, by disclosure of the third category upon a showing of particularized need,

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

March 10, 2020.

While DOJ’s appeal was pending, the House adopted two Articles of

Impeachment against President Trump for abuse of power in connection with a

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.

The Committee’s impeachment investigation related to obstruction of justice

pertaining to the Russia investigation is ongoing. As the Committee has explained,

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

Committee will proceed accordingly—including, if necessary, by considering

whether to recommend new articles of impeachment.” Comm. Supp. Br. 17 (Dec.

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

banc)), as well as “traditional tools of statutory construction,” “constitutional text,”

and “historical practice” establish that a Senate impeachment trial is a “judicial

proceeding” under the Rule, App. 12a-14a.

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

precedent to balance the competing interests.

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

materials preliminary to a possible Senate impeachment trial, which has always

been understood as an exercise of judicial power.” App. 33a-34a (Rao, J.,

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

release of the materials was still warranted, App. 36a.

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

Justice or of the Court. See Order (May 8, 2020).

ARGUMENT

I. This Court Should Deny A Stay Of The Mandate Pending Certiorari

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

(1991) (Scalia, J., in chambers).

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)

(Stevens, J., in chambers).

DOJ cannot satisfy this standard. The case plainly does not warrant this

Court’s review—there is no conflict with any decision of this Court, there is no

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’

interpretation of “judicial proceeding” is supported by the Constitution, historical

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

DOJ has in maintaining grand-jury secrecy. By contrast, the potentially lengthy

stay sought by DOJ would seriously and irreparably harm the public and the

House, whose Article I functions remain stymied.

A. DOJ Cannot Show A Reasonable Probability That This Court Will

Grant Certiorari

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

proceeding” in Rule 6(e)(3)(E)(i)—the panel was unanimous. All three judges,

10
including Judge Rao, agreed that a Senate impeachment trial is a “judicial

proceeding” for purposes of Rule 6(e)’s exception for disclosures of grand-jury

material “preliminarily to … a judicial proceeding.” App. 25a-26a; App. 33a-34a

(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.

1072, 1075-76 (S.D. Fla. 1987).

The most that DOJ can muster is an assertion (at 14) that the court of

appeals’ reading of the term “judicial proceeding” to encompass a Senate

impeachment trial is “in serious tension” with language referring to “litigation” in

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.

Furthermore, this Court’s review is unwarranted because the issues

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

review because it “create[s] serious separation-of-powers concerns.” Not so. This

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

reject. See 28 U.S.C. § 2071 et seq.

Nor does this case “create” separation-of-powers concerns between Congress

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

grand-jury materials by Congress in connection with an impeachment.

The court of appeals’ decision here merely preserves the separation-of-powers

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

grand-jury materials for Congress’s use in impeachment proceedings. See App.

117a-18a n.30. As the court of appeals observed, “[i]t is only the President’s

categorical resistance and the Department’s objection that are unprecedented.”

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

of grand-jury material outside the Rule’s enumerated exceptions—and the

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

an especially poor vehicle for the Court’s review.

Moreover, as explained below, the court of appeals in this case correctly

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

impeachment process that DOJ claims could create separation-of-powers concerns.

DOJ’s remaining arguments regarding the proper interpretation of Rule 6(e)

(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

correction of errors in lower court decisions.” Stephen M. Shapiro et al., Supreme

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

Court’s review. See App. 15a-16a; S. Ct. R. 10.

B. DOJ Cannot Establish A Fair Prospect That This Court Will

Reverse The Court Of Appeals’ Decision

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

Court were to grant certiorari, it would prevail on the merits.

13
 1. The Court of Appeals Correctly Determined That A Senate
Impeachment Trial Is A Judicial Proceeding

a. As all three members of the court of appeals panel recognized, Rule

6(e)(3)(E)(i)’s exception to the general rule of grand-jury secrecy for use of grand-

jury material “preliminarily to or in connection with a judicial proceeding”

encompasses disclosures to the House preliminary to a Senate impeachment trial.

The Constitution makes clear that a Senate impeachment trial is a judicial

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

“Judgment in Cases of Impeachment.” Id., Art. I, § 3, cl. 7 (emphases added). And

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,

cl. 3 (emphases added).

The Federalist Papers and this Court’s precedent dating to the Founding

confirm that impeachment trials have long been understood as an exercise of

judicial power. See The Federalist No. 47 (James Madison) (describing the Senate

as the “depositary of judicial power in cases of impeachment” (emphasis added));

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

(1917) (Congress’s contempt power can be “transformed into judicial authority”

when a “committee contemplat[es] impeachment” (emphasis added)).

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

Justice Rehnquist during President Clinton’s impeachment trial that Senators

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

in this context as the High Court of Impeachment. So we are not a legislative

Chamber during these proceedings…. We are in court.” 166 Cong. Rec. S580 (daily

ed. Jan. 27, 2020) (statement of Kenneth Starr).

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

includes numerous examples of Congress obtaining grand-jury material for use in

investigations, including impeachment inquiries. See App. 14a; see also, e.g., 3

Hinds’ Precedents of the House of Representatives § 2488, at 984-85 (1907)

(reflecting that, as early as 1811, a grand jury in Mississippi forwarded to the

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

authorized disclosure of grand-jury material to Congress for use in impeachment

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.

Moreover, the Rule uses the term “judicial proceeding”—not “court

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

“judicial proceeding” a “broad interpretation” that may include “every proceeding of

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.

1986) (tax court proceedings).

The structure of Rule 6(e) further supports this conclusion. The other

exceptions in Rule 6(e) permit disclosure of grand-jury material in circumstances

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

judicial-proceedings exception should be understood to allow for disclosure to the

Committee for use in impeachment.

b. DOJ’s arguments to the contrary are wrong. DOJ claims (at 14) the court

of appeals’ reading of the term “judicial proceeding” to encompass a Senate

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

material to Congress for impeachment purposes. Baggot involved a request for

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

IRS civil audit is ‘preliminar[y] to’ a redetermination proceeding or a refund suit

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

fairly directly to some identifiable litigation” was a reference to the relationship

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.;

see also id. at 479 n.2.

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

sense” if applied to a Senate impeachment trial. Rule 6(e)(3)(F) merely requires

that courts receiving disclosure petitions afford the “parties to the judicial

proceeding” an opportunity to be heard. There is no reason that requirement

cannot apply equally to an impeachment proceeding. Indeed, in this case, the

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

a judicial proceeding in another district,” the petitioned court must generally

“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

provision applies only to proceedings in “federal district court in another district,”

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

“encompassed within” the judicial proceeding exception; it is well-established that

they are. See id. So too with impeachment proceedings.

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 Finally, in light of its recent change in position, DOJ dismisses (at 23-24) the

historical examples of disclosure of grand-jury information to Congress as not

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

recent change in position—and the purported separation-of-powers concerns that it

raised for the first time before the court of appeals in this very case—as an excuse

to discard nearly 50 years of case law.

2. The Court of Appeals Faithfully Applied This Court’s

Particularized-Need Test To The Impeachment Context

In considering an application for grand-jury material under Rule 6(e)(3)(E)(i),

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[.]”).

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DOJ’s suggestion that the court of appeals applied a different and incorrect

standard misunderstands the court’s careful opinion. The court of appeals

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

House’s need for information for use in impeachment.

a. To establish the required “particularized need,” parties seeking grand-jury

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

445. A district court’s application of this standard is committed to the court’s

“considered discretion.” Douglas Oil, 441 U.S. at 228.

As discussed below, this flexible standard can be applied where the disclosure

is preliminary to a Senate impeachment trial. But to the extent DOJ’s argument is

intended to cast doubt on whether the particularized need test is satisfied here—a

fact-bound inquiry subject to a deferential standard of review, see id. at 223

(“emphasiz[ing]” that courts applying the particularized need test are “infused with

substantial discretion”)—that suggestion is unfounded.

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 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

determine whether, or to what extent, links existed between the Russian

government’s efforts to interfere in the 2016 United States presidential election

proceedings and individuals associated with President Trump’s election campaign.”

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

the President was impeached and acquitted on separate Articles of Impeachment

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

material remains central to the Committee’s ongoing investigation into the

President’s conduct. If this material reveals new evidence supporting the

21
conclusion that President Trump committed impeachable offenses that are not

covered by the Articles adopted by the House, the Committee will proceed

accordingly—including, if necessary, by considering whether to recommend new

articles of impeachment. See Comm. Supp. Br. 17.

b. DOJ is also wrong to argue (at 24-32) that the particularized-need test

simply cannot be applied in the impeachment context because (1) distinguishing

between types of judicial proceedings and tailoring the test accordingly is

inappropriate; (2) in attempting to do so here, the court of appeals applied a mere

relevance standard inconsistent with this Court’s precedent; and (3) any attempt to

apply the correct particularized-need standard runs headlong into separation-of-

powers problems that render the Rule unconstitutional. Each of these contentions

is incorrect.

First, DOJ erroneously asserts (at 28) that it is improper to “distinguish[]

between types of judicial proceedings” in applying the particularized-need test. To

the contrary, taking into account the context and special circumstances of the

request comports with this Court’s instruction that the particularized-need

standard is “highly flexible” and “adaptable to different circumstances.” Sells

Eng’g, 463 U.S. at 445. It also follows this Court’s approach in other cases that

considered the nature of the specific judicial proceeding at issue.

For example, in Dennis v. United States, 384 U.S. 855 (1966), this Court

applied the particularized-need standard to account for the special needs of a

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

to all relevant aid which is reasonably available” to ascertain the substance of

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—

efficient, effective, and evenhanded enforcement of federal statutes”—supported

disclosure to select DOJ attorneys, which “does not pose the same risk of a wide

breach of grand jury secrecy” as disclosure to the public at large).

The court of appeals correctly applied this precedent here, recognizing that

the particularized-need standard can be applied in the impeachment context to

assess need consistent with this Court’s precedent while avoiding any constitutional

questions that might arise from a court “micromanaging” the Committee’s

impeachment investigation. App. 18a.

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.

Those categories of information were limited to the text obscured by specific

redactions in the Mueller Report and the portions of the underlying grand-jury

materials related to those specific redactions, which the Committee established

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

relevant to the topics of the Committee’s impeachment investigation. Indeed, the

district court withheld the third category of information requested by the

Committee—any underlying grand-jury testimony and exhibits that relate to

certain individuals and events described in the Mueller Report—pending a separate

showing of particularized need for that specific material. App. 150a.

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-

by-line or witness-by-witness determination only in cases where grand jury

materials are needed in a future trial to impeach or refresh the recollection of a

specific witness.” App. 18a. The court of appeals’ approach adhered to this Court’s

precedent.

Third, the court of appeals’ proper application of the particularized-need

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-

need standard would “require[] federal courts to scrutinize particular theories of

impeachment and weigh the significance of particular evidence under those

theories” in violation of separation-of-powers principles.

DOJ incorrectly argues (at 24-26) that the panel’s approach renders

unconstitutional the portion of Rule 6(e)(3)(E) that authorizes a district court to

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

to Congress, this provision of the Rule necessarily will be invalid as applied to

Congress. However, even under DOJ’s reading, a court would retain the ability to

disclose grand-jury material in the time and manner it chooses—for example, by

allowing only in camera review at the court. And to the extent the Constitution

limits a court’s discretion to impose “any conditions it directs” or to enforce

conditions after the disclosure of grand-jury information to Congress, that

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

DOJ has failed to satisfy its burden of establishing irreparable harm. By

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

secrecy.” App. 10a.

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

adopted confidentiality protocols to help maintain the secrecy of the materials.

These protocols—now found sufficiently protective by two courts, see App. 20a,

147a-48a—provide that, absent a further vote, any grand-jury material the

Committee receives will remain confidential.

The protocols are similar to those adopted by the Committee decades ago to

protect impeachment-related materials, including the Watergate Roadmap grand-

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

Report, including materials that related to then-ongoing criminal matters. DOJ

does not assert that the Committee has improperly released that sensitive

information.

Any abstract interest on the part of DOJ in maintaining secrecy is also

substantially diminished at this juncture. DOJ, notably, does not contend that

disclosure of the grand-jury material would harm any pending law-enforcement

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

active investigations, such as preventing flight by the targets of criminal

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

likely to testify truthfully because of a disclosure in this case. Grand-jury witnesses

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

their testimony could one day be disclosed to Congress during an impeachment

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.”

But, as just discussed, the Committee’s confidentiality protocols were adopted to

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.”).

2. In contrast to the lack of irreparable injury to DOJ, any further delay in

receiving the materials would cause the Committee and the public to suffer

significant, irreparable harm by impairing the House’s efforts to determine whether

the President committed certain impeachable offenses. Because the inability to

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

DOJ requests would risk subjecting the Committee to significant constitutional

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

the court of appeals in December, its investigation into President Trump’s

misconduct is ongoing, and the grand-jury material will inform its determination

whether President Trump committed additional impeachable offenses in

obstructing the Russia investigation and whether to recommend new Articles of

Impeachment. See Comm. Supp. Br. 17-18.

The Committee’s investigation continues today and has further developed in

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),

https://perma.cc/799D-2PNY. The Committee has announced its intention to hold a

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.

See Press Release, H. Comm. on the Judiciary, Chairman Nadler Statement on

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

Counsel has recognized “the public interest in immediately removing a sitting

President whose continuation in office poses a threat to the Nation’s welfare.” A

Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op.

O.L.C. 222, 258 (2000). Delaying disclosure of this information has already

significantly injured that interest in prompt action—and further delay would be

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

time-limited Congress. The public interest would be harmed irreparably if DOJ

runs out the clock on the impeachment process.

These profound and irreparable injuries to the Committee and the public

thus weigh decisively in favor of denying the stay.

II. If The Court Grants A Stay, It Should Order Expedited Briefing On

DOJ’s Forthcoming Petition For Certiorari

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

General’s request, response to certiorari petition ordered to be filed within 12 days

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

cause to Congress and the public interest.

CONCLUSION

For the foregoing reasons, the application for a stay should be denied.

Respectfully submitted,

Annie L. Owens Douglas N. Letter

Joshua A. Geltzer Counsel of Record
Mary B. McCord Todd B. Tatelman
Daniel B. Rice Megan Barbero
INSTITUTE FOR CONSTITUTIONAL Josephine Morse
ADVOCACY AND PROTECTION Adam A. Grogg
Georgetown University Law Center Jonathan B. Schwartz
600 New Jersey Avenue N.W. OFFICE OF GENERAL COUNSEL
Washington, D.C. 20001 U.S. HOUSE OF REPRESENTATIVES
(202) 662-9042 219 Cannon House Building
ao700@georgetown.edu Washington, D.C. 20515
(202) 225-9700
douglas.letter@mail.house.gov

May 18, 2020

31