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

Updated on Nov. 8

A federal appeals court in Washington has set a Nov. 18 hearing to consider a trial judge's order validating the House's impeachment inquiry and requiring the U.S. Justice Department to disclose now-secret grand jury materials that were part of the special counsel's Russia investigation.

Two Republican-appointed judges—Neomi Rao and Thomas Griffith—and one Democratic appointee, Judith Rogers, will preside at Tuesday's hearing in the U.S. Court of Appeals for the D.C. Circuit. Rao, appointed by President Donald Trump, last month voted in dissent against House Democrats in a dispute over a subpoena that was issued to Trump's longtime accounting firm for copies of his financial records.

Chief U.S. District Judge Beryl Howell of the District of Columbia issued a 75-page ruling Oct. 25 siding with the House Judiciary Committee in its quest to obtain the full findings of former Special Counsel Robert Mueller III, who in March concluded his two-year investigation into Russian interference in the 2016 presidential election. In his summary of his office's findings, Mueller reported that he uncovered no evidence that the Trump campaign conspired with the Kremlin, but he documented several episodes of possible efforts by the president to obstruct the investigation.

Howell, who as chief judge presides over grand jury matters in Washington federal court, cited the public's substantial interest in the Mueller probe in ruling for the House Judiciary Committee. She rejected Main Justice's claim that the redacted portions should remain secret due to ongoing criminal cases stemming from Mueller's probe.

With limited exception, grand jury material is shielded from the public. One exception allows judges to release grand jury information "preliminarily to or in connection with a judicial proceeding." Howell spurned the Justice Department's argument that the House's ongoing impeachment inquiry and would-be impeachment trial in the Senate do not amount to a "judicial proceeding."

"Contrary to DOJ's position—and as historical practice, the Federalist Papers, the text of the Constitution, and Supreme Court precedent all make clear—impeachment trials are judicial in nature and constitute judicial proceedings," Howell wrote in her order.

The D.C. Circuit's order Wednesday allotted 15 minutes of argument time for the House and for the Justice Department. Neither side has yet said who will argue in the appeals court, where an array of Trump-related cases have been resolved or are pending.

The full appeals court is weighing whether to rehear its 2-1 ruling that Trump's accounting firm, Mazars USA, must respond to a House subpoena seeking Trump financial records. The appeals court is also considering whether the House Oversight Committee can get access to documents about Trump's downtown D.C. hotel. Trump has faced scrutiny over whether profits from his vast business empire violate the Constitution's ban on presidents receiving "emoluments," or gifts.

Rogers and Griffith are veterans of the D.C. Circuit. Rogers has served since the Clinton administration, and Griffith since the George W. Bush administration. All three judges—Rao, Rogers and Griffth—are fairly active on the bench at oral arguments, engaging often with the lawyers appearing before them.

The judges' ruling in the dispute over Mueller grand jury materials ultimately, like any case, could go before the full bench, or be appealed to the U.S. Supreme Court. The justices haven't yet had occasion to rule on any impeachment-related disputes, or any dispute involving Trump's financial records.

Read more:

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DC Circuit Upholds Democrats' Subpoena for Trump's Financial Records

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Trump Can't Block NY Grand Jury Subpoena Seeking Tax Records: 2nd Circuit

 

The court on Friday rescheduled oral argument to Nov. 18.