And when the Supreme Court says not so fast, it really means settle in for a good long wait. House Democrats won two lower-court decisions on their demand to unseal grand jury testimony in Robert Mueller’s special-counsel probe into the defunct Russia-collusion allegation, but an appeal by the Department of Justice won a stay at the high court. That could mean that the records will be frozen until well past the November election:
The Supreme Court temporarily denied a motion Wednesday from House Democrats to obtain grand-jury testimony and other documents from former Special Counsel Robert Mueller’s Russia investigation as they conduct what they’ve referred to as an “ongoing presidential impeachment investigation” into President Trump.
The court’s order kept undisclosed details from the probe into Russian interference in the 2016 presidential election out of the Democrats’ hands until at least early summer. Democrats have until June 1 to brief the court about whether the full case should be heard.
The Democrats had told the court Monday they were in an “ongoing presidential impeachment investigation” while arguing that Mueller’s now-completed Russia probe needed to be turned over as a result.
“The [House Judiciary] Committee’s investigation did not cease with the conclusion of the impeachment trial,” the Democrats told the nine justices. “If this material reveals new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the articles adopted by the House, the committee will proceed accordingly — including, if necessary, by considering whether to recommend new articles of impeachment.”
The stay comes in a terse, one-paragraph order that allows the DoJ until June 1 to formally appeal the earlier rulings. Assuming that William Barr takes up that invitation, which he surely will, then all that is needed is three other justices to grant cert. Given the extraordinary nature of the House demand to crack the secrecy of grand-jury proceedings, there is no chance that this will get denied. Once cert is granted, the stay will remain in effect until the case gets decided.
When will that be? The court’s term is almost over, and their schedule for hearing cases ended earlier this month. For the next four weeks, the court will produce its decisions on a backlog of cases. Except for true emergencies, any new arguments will get deferred to the start of the next session in October, with decisions likely months off from arguments in any case. It is therefore highly unlikely that House Democrats will get their hands on this testimony before the election, if at all.
The Wall Street Journal sees this as the likely scenario as well:
The court, in a written order Wednesday, granted an emergency request by the Trump administration to keep the materials secret while it mounts a full high court appeal against their release.
The high court’s action increases the likelihood that the information will remain shielded through Election Day, unless the court decides to make special accommodations to speed up the case this summer or backtracks from Wednesday’s order and decides not to give the case a full review. The justices didn’t explain their reasoning in the short announcement.
The WSJ also notes that there were no dissenting opinions from the stay, although those are somewhat unusual in the norm. It could mean that the court has generally agreed to slow everything down, though, in order to take some of the electoral politics out of a thorny legal question. Once the election is over, the decision will have much less impact on the election while still setting a clearer mark over whether a House impeachment process provides enough of a “judicial” action to allow for the exception to grand-jury secrecy.
This does offer another complication, however. On this schedule, it’s more likely that the decision on this appeal will come in early 2021. By that time, Congress will have an entirely new session, which means that any impeachment process will have terminated with the end of this session of Congress. This might have the effect of making their decision entirely academic, unless the House starts a new impeachment process all over again in January.
However, if Republicans win back control of the House (not terribly likely but still possible), they won’t be taking up impeachment. If Trump doesn’t win re-election, there is no basis for impeachment even if Democrats still control the House — you can’t impeach someone who isn’t in office — which would eliminate any claim of “judicial action” to qualify for the exception to grand-jury secrecy. The Supreme Court might end up siding with House Democrats while essentially blocking their efforts to politicize the artifacts of a cooked-up probe that failed to find any evidence of House Democrats’ central claims about the 2016 election — namely, that Democrats lost because Trump colluded with Russians to cheat.
There would be some ironic justice in that outcome. As it stands, though, the Supreme Court’s intervention here to stay the lower-court rulings without some sort of appellate split hints that they might not think much of the House Democrats’ claim to ongoing presidential impeachment actions, especially given how badly the Russia-collusion narrative collapsed. At this point, the justices might be much more concerned about protecting the grand-jury system from political exploitation, which is very much at risk in this case.
