Neomi Rao Neomi Rao testifies at her confirmation hearing in February 2019. Photo: Diego M. Radzinschi/ALM

A three-judge panel on Friday asked whether the House Judiciary Committee has legal grounds to seek grand jury materials from special counsel Robert Mueller's probe.

The U.S. Court of Appeals for the D.C. Circuit panel, in a brief order, asked attorneys for both the House Judiciary Committee and the Department of Justice to file supplemental briefs on whether the House has Article III standing to bring forward the lawsuit over the Mueller grand jury information.

The panel, comprised of Judges Neomi Rao, Thomas Griffith and Judith Rogers, asked that briefings be filed by Dec. 23. Oral arguments on the merits of the appeal are scheduled for Jan. 3.

The request comes after two judges on the panel suggested, during oral arguments for a stay earlier this month, that the court is not the proper forum for the dispute. The judges have extended an administrative stay of the district court order requiring the House be given the grand jury materials, "pending further order" from the circuit court.

Rao, a Trump appointee who joined the bench earlier this year, asked during arguments why this is a matter that should be handled in the courts.

"Would that impermissibly involve this court in an impeachment proceeding?" she asked.

And Griffith, a President George W. Bush appointee who previously worked as a Senate legal counsel, also said Rao's point was "interesting."

Friday's order comes after Republicans on the House Judiciary Committee repeatedly argued this week that Democrats must go to court as part of their impeachment inquiry, as they debated the articles of impeachment against Trump.

The GOP members of the Judiciary panel said that the House should have gone to court to compel more officials to testify and hand over documents, to build the case against Trump.

But Democrats said that, because Trump and White House counsel Pat Cipollone never asserted executive privilege in denying the requests for information, it wasn't a matter for the courts to adjudicate.

Trump is alleged to have pushed Ukraine to open investigations into his political rival, former Vice President Joe Biden, while withholding military aid from the nation. The president has denied any wrongdoing.

U.S. Chief District Judge Beryl Howell issued an exhaustive and powerful opinion in October, finding that the Justice Department had to turn over the grand jury information redacted from the Mueller report, as well as other grand jury materials such as transcripts, as part of the House's impeachment inquiry.

Howell wrote that the committee "needs the requested material not only to investigate fully but also to reach a final determination about conduct by the President described in the Mueller Report."

House Democrats chose not to include an article of impeachment for obstruction of justice by Trump as detailed in the Mueller report, focusing instead on allegations of impeachable conduct by Trump as uncovered in the House Intelligence Committee's Ukraine investigation.

However, Trump's conduct detailed in Mueller's investigation was mentioned in both articles of impeachment for obstruction of Congress and abuse of power, to indicate a pattern of behavior from the president that merits his removal. The House Judiciary Committee earlier Friday advanced the articles along party lines, and the full House is expected to vote on them next week.

This isn't the first time the U.S. House has recently faced a question of standing in federal court. The U.S. Court of Appeals for the Fifth Circuit also asked whether the House or a coalition of states had standing in the states' challenge to the Affordable Care Act, or Obamacare.

A three-judge panel heard arguments in the Obamacare case in July, and also raised questions about standing to the parties then, on top of the supplemental briefing.

The U.S. Court of Appeals for the Sixth Circuit earlier this year also rejected the House's attempt to intervene in defending a federal ban on female genital mutilation, after the Justice Department said it would stop defending the law in court.

Read more:

DC Circuit Judges Rao, Griffith and Rogers Will Weigh Release of Mueller Grand Jury Materials

House Wants Quick Ruling for Grand Jury Info, Saying Trump May Have Lied to Mueller

Judge Pierces Mueller Report Secrecy, Orders Material Disclosed to House Democrats

'We Do Not Need Permission From the Courts': House Judiciary Advances Articles of Impeachment

Fifth Circuit Questions Whether US House Can Defend Obamacare