The Washington Post - 11.03.2020

wednesday, march 11 , 2020. the washington post eZ re A

BY ANN E. MARIMOW

The Justice Department must
release to congressional Demo-
crats secret grand jury evidence
lawmakers are seeking in ongoing
investigations into President
Trump, a federal appeals court in
Washington r uled Tuesday.
The divided ruling, which can
be appealed, is a victory for D emo-
cratic lawmakers in one of a set of
separation-of-powers lawsuits
filed before the House voted to
impeach President Trump in De-
cember and before the Senate ac-
quitted him in February.
The U. S. Court of Appeals for
the D.C. Circuit upheld a lower
court order that gives Congress
access to certain secret material
from Robert S. Mueller III’s inves-
tigation into Russian interference
in the 2016 presidential election.
The 2-to-1 decision is unlikely t o
be the final word and does not
mean the redacted material from
Mueller’s final report will be im-

mediately turned over to Con-

gress. The ruling can be appealed

to the full court or to the Supreme

Court.

Judge Judith W. Rogers found

the House in its impeachment in-

vestigation was legally engaged in

a judicial process that exempts

Congress from secrecy rules that

typically shield grand j ury materi-

als from disclosure. Grand jury

records, she noted, are court re-

cords — not Justice Department

records — and have historically

been released to Congress in the

course of impeachment investiga-

tions involving three federal judg-

es and two presidents.

“Where the Department is le-

gally barred from handing over

grand jury materials without

court authorization, judicial re-

straint does not empower Con-

gress; it impedes it,” w rote Rogers,

who was joined by Judge Thomas

B. Griffith.

Judge Neomi Rao, dissented,

saying the House Judiciary Com-

mittee lacks legal grounds to ask

the c ourt t o enforce a subpoena f or

the grand jury materials. Rao

would have returned the case to

District Court to determine

whether the committee can still

show its “inquiry is preliminary to

an impeachment proceeding and

that it has a ‘particularized need’

for d isclosure.”

The Justice Department is re-

viewing the d ecision, spokeswom-

an Kerri Kupec s aid.

House Speaker Nancy Pelosi

(D-Calif.) said in a statement:

“This important appeals court de-

cision upholds the House’s long-

standing right to obtain grand

jury information pursuant to the

House’s impeachment power and

makes clear that the release of

grand jury information i s the d eci-

sion of the federal judiciary — not

the A dministration.”

The appeals court was review-

ing an earlier ruling from Chief

U.S. District Judge Beryl A. How-

ell. Justice Department lawyers

had urged the appeals court to

stay out of a political dispute be-

tween Congress and the Trump

administration, and said exemp-

tions allowing disclosure in cer-

tain cases do not apply to an im-

peachment p roceeding.

Justice Department lawyers

suggested a previous Watergate-

era ruling affirming that grand-

jury materials could be shared

with the House d uring the i nvesti-

gation of President Richard N ixon

had b een wrongly d ecided.

But the court majority dis-

agreed, finding that secrecy con-

cerns do not outweigh the House’s

need to review the m aterial and its

investigative p owers.

The House Judiciary Commit-

tee’s “need for the grand jury ma-

terials remains unchanged. The

Committee has repeatedly stated

that if the grand jury materials

reveal new evidence of impeach-

able offenses, the Committee may

recommend new articles of im-

peachment,” Rogers w rote i n a 26-

page opinion.

“Courts must take care not to

second-guess the manner in

which the House plans to proceed

with its impeachment investiga-

tion or interfere with the House’s

sole power of impeachment,”

wrote Rogers, a nominee of f ormer

president Bill Clinton.

The committee’s lawsuit was

filed i n July 2 019 before the f ormal

start of the impeachment inquiry

centered o n Trump’s a lleged e ffort

to pressure Ukraine to investigate

former vice president Joe Biden, a

potential 2020 political rival. But

House lawyers told the court that

lawmakers a re still trying to deter-

mine whether Trump lied in writ-

ten responses to Mueller’s investi-

gators.

Lawmakers said they need ac-

cess to redacted and underlying

materials from Mueller’s report to

try to establish a pattern of the

president’s conduct.

Griffith, nominated by former

president George W. Bush, wrote

separately Tuesday to take issue

with the d issent f rom Rao, a recent

Trump nominee.

Griffith authored the D.C. Cir-

cuit’s divided opinion last week

finding the court was not autho-

rized to resolve a separate dispute

between the White House and

House Democrats over a congres-

sional subpoena for Trump’s for-

mer c ounsel Donald McGahn.

In h is concurring o pinion Tues-

day, Griffith wrote, “A s gatekeep-

ers 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 j ury records whose

disclosure the district court, by

both tradition and law, c ontrols. ...

Although I agree with the dissent

that we have an independent obli-

gation to assure ourselves of our

jurisdiction,” Griffith wrote. “we

need not chase jurisdictional

phantoms.”

[email protected]

Justice must provide grand jury evidence to Congress, court says

BY MICHELLE YE HEE LEE

A Senate committee on Tues-
day considered President Trump’s
nominee to fill a vacancy on the
Federal Election Commission. If
the nominee is confirmed, it
would restore the agency’s ability
to conduct official business as the
primary elections advance.
The Senate Rules Committee’s
rare public hearing on a nominee
for the FEC, James E. “Trey”
Trainor III, served as the first step
to confirm the conservative Te xas
lawyer, whose nomination has
languished for three years.
In August, the FEC lost the
ability to do its official job after
the resignation of a commission-
er left it unable to operate for the
first time in 11 years, without its
necessary four-person quorum.
Trainor has been nominated
three times to the position since
2017, but he remained in limbo
amid controversy over his social
media postings and a standstill

among Senate leaders on the lo-

gistics of appointing commission-

ers.

It remains unclear whether

Trainor will be confirmed. The

Rules Committee has not yet

scheduled its vote to move his

nomination to the full Senate. On

Thursday, party leaders in the

Senate remained split on Train-

or’s nomination.

Trainor, an Austin-based elec-

tions lawyer, has pushed for less

regulation of money in politics

and fought efforts to require po-

litically active nonprofit organi-

zations to disclose their donors.

Senate Minority Leader Charles

E. Schumer (D-N.Y.) attended the

hearing to raise concerns about

Trainor’s p ast comments on limit-

ing donor disclosure. Govern-

ment transparency groups widely

oppose Trainor’s confirmation.

Senators asked Trainor his role

in redistricting and gerryman-

dering cases in Te xas and his

views on the enforcement role of

the FEC.

When asked about Russian in-

terference in the 2016 presiden-

tial election, Trainor did not men-

tion Russia but acknowledged

that “there has been foreign inter-

ference in our elections, and I

believe there is still the potential

for our elections to be targeted by

foreign entities.”

Democratic senators asked

whether he would recuse himself

in cases involving President

Trump, given his previous role

advising the Republican National

Committee and Trump during the

2016 election.

Trainor said he would not ap-

ply a “blanket r ecusal” but that he

would consult the FEC’s ethics

advisers to recuse from certain

cases if necessary, noting that

that is a standard process for

commissioners.

Senate Majority Leader Mitch

McConnell (R-Ky.), who has called

for a full slate of six new FEC

commissioners, said he support-

ed restoring the quorum, reestab-

lishing party b alance among com-

missioners, and bringing the

agency one step closer to having

six new commissioners.

The three commissioners are

Republican Caroline Hunter,

whose term expired in 2013; Dem-

ocrat Ellen Weintraub, whose

term expired in 2008; and Steven

Walther, an independent who of-

ten caucuses with the Democrats,

whose term expired in 2009. Un-

der federal law, no more than

three FEC commissioners can be

from the same party, and the

panel typically has been split

equally along party lines.

McConnell said he wishes to

see “a clean slate of commission-

ers, all serving on real, unexpired

terms, to bring new energy, build

new relationships and inject

some new perspective.”

Senate Democrats had pushed

for restoring the quorum, and for

upholding an unwritten tradition

of appointing a pair of commis-

sioners — one from each party —

at a time. Senate Democrats said

they vetted and recommended

Shana Broussard, an FEC attor-

ney, to the panel. But there has

not yet been a formal nomination

sent to the Rules Committee.

[email protected]

Senate panel holds hearing on nominee who could restore quorum at FEC

caroline Brehman/cQ roll call/associated Press

James E. “Trey” Trainor III testifies before a Senate panel

considering his Federal Election Commission nomination.

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