Access delayed is pretty much access denied, and that doesn’t just benefit Donald Trump. The Supreme Court granted cert in the Department of Justice’s battle to keep grand-jury testimony from Robert Mueller’s special counsel investigation sealed, which means the court won’t take up the case until October at the earliest. That’s bad news for House Democrats who wanted to use the material in the election, but it’s also a smart move for the Supreme Court itself:
The Supreme Court is denying Congress access to secret grand jury testimony from special counsel Robert Mueller’s Russia investigation through the November election.
The justices agreed on Thursday to hear the Trump administration’s appeal of a lower court order for the material to be turned over to the Democratic-controlled House of Representatives. The high court’s action will keep the documents out of congressional hands at least until the case is resolved, which is not likely to happen before 2021.
It hardly comes as a surprise to see the Supreme Court take this case. It requires balancing competing constitutional interests from the other two federal branches, a role traditionally suited for the top court to decide. In this case, it also concerns competing judicial interests, with grand jury processes a necessary bulwark against prosecutorial overreach — even if not a terribly strong bulwark. A case involving an extraordinary prosecution that ended up flopping and the clearly political interest in its minutiae makes it an imperative for Supreme Court review.
Or, perhaps, a Supreme Court punt. Want to bet there are at least four justices who hope never to hear this case? The Associated Press explains:
The delay is a victory for Trump, who also is mounting a Supreme Court fight against congressional efforts to obtain his banking and other financial records. Those cases are expected to be decided in the coming days or weeks.
The court’s action also could mean the justices never have to reach a definitive ruling in a sensitive dispute between the executive and legislative branches of government, if either Trump loses reelection or Republicans regain control of the House next year. It’s hard to imagine an administration of Democrat Joe Biden would object to turning over the Mueller documents or House Republicans would continue to press for them.
Don’t be so sure that a Biden administration would be so sanguine about permitting access to those records. That would set a precedent that could easily come back to bite Joe Biden or another Democratic president, if and when another special counsel has to get appointed to deal with corruption allegations. The next administration has an interest in keeping those records sealed, too — and if Trump loses, no particular reason to unseal them, either.
If Trump wins the election, it’s not clear just how much enthusiasm House Democrats will have for pressing the case, either. Even if they manage to hold onto their majority in a Trump win, the voters will have spoken on their impeachment cause. It’s bad enough trying to remove a duly elected president once; will they want to try it again after Trump gets elected again? Perhaps, but at that point more of them will want to move on to other issues.
If the Supreme Court is very lucky, they’ll never have to decide the case. Bet on arguments getting scheduled for mid-November or later.