Robert Mueller. Robert Mueller, former special counsel for the U.S. Department of Justice, testifies before the House Judiciary Committee in Washington, D.C., on July 24, 2019. Credit: Diego M. Radzinschi / ALM

The Department of Justice said in a court filing Friday that it intends to petition the U.S. Supreme Court to take up a lawsuit over grand jury materials redacted from former special counsel Robert Mueller III's report, after a divided panel on the U.S. Court of Appeals for the D.C. Circuit ruled in the House's favor.

The DOJ lawyers asked the D.C. Circuit to issue a stay on issuing the mandate of the case, as they would be required to hand over the Mueller grand jury materials by next Friday. The motion also indicates that the attorneys will skip seeking an en banc rehearing, as Trump's personal lawyers have done in other House lawsuits.

Friday's motion says the panel decision on the redacted materials raises "significant separation of powers issues, further demonstrating the existence of a 'substantial question' for Supreme Court review."

"The plain meaning of the term 'judicial proceeding' encompasses proceedings before a court—not a legislative body carrying out the inescapably political task of impeachment," Friday's filing reads.

"And reading the term to go beyond its plain meaning raises significant separation of powers concerns by rendering key portions of Rule 6(e) inoperative or unconstitutional in application, and permitting Congress to seek, on an assertion of relevance, grand jury materials without meeting the standards ordinarily required of other litigants, with concomitant potential for harassment of the Executive Branch."

The motion was filed just days before the D.C. Circuit will hear en banc arguments in a pair of high-profile lawsuits, where the judges will be asked to rule on whether the House has standing to sue executive branch officials.

In the Mueller grand jury case, Judge Judith Rogers wrote in the majority opinion that impeachment is a judicial proceeding, one of the few instances where grand jury information can be released to a third party.

She said that the DOJ "ignores that courts have historically provided grand jury records to the House pursuant to Rule 6(e) and that its interpretation of the rule would deprive the House of its ability to access such records in future impeachment investigations."

The House impeached Trump late last year over allegations that he withheld military aid from Ukraine while pressuring that nation to investigate former Vice President Joe Biden and his son. The Senate acquitted Trump in February. However, the House in court filings has not foreclosed the possibility of future articles of impeachment against Trump.

The Supreme Court will hear phone arguments May 12 over subpoenas issued to third parties for Trump's financial records, including House subpoenas.

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