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Trump judge lays out an aggressive plan to protect Trump from congressional oversight

Judge Neomi Rao’s opinions read like she’s acting as Trump’s personal protector.

Neomi Rao, President Donald Trump’s nominee to be US circuit judge for the District of Columbia Circuit, testifies during a Senate Judiciary confirmation hearing on Capitol Hill on February 5, 2019, in Washington, DC.
Zach Gibson/Getty Images

A federal appeals court ruled that the House Judiciary Committee must be allowed to see certain confidential documents relating to former special counsel Robert Mueller’s investigation into potential Russian interference in the 2016 election — despite the Trump administration’s efforts to keep these documents secret.

That decision isn’t particularly surprising; indeed, it’s a pretty straightforward application of a federal procedural rule governing grand jury secrecy. The one thing that stands out about this decision is Judge Neomi Rao’s dissent.

Rao is both a former Trump White House official and a former law clerk to Supreme Court Justice Clarence Thomas. And her name is well-known to anyone who has followed President Trump’s efforts to avoid congressional oversight. Last fall, she wrote a widely mocked dissenting opinion that could have shut down much of Congress’s power to investigate the president altogether.

The case, which has the obnoxiously long title In re: Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, involves a fairly minor legal dispute about when grand jury materials can be shared with outside investigators. After Mueller filed his report, the Judiciary Committee sought various documents, including some redacted portions of the report, and “any underlying grand jury testimony and exhibits that relate directly to certain individuals and events described in the Mueller Report.”

As a general rule, grand jury materials are kept confidential. But the Federal Rules of Civil Procedure sometimes allow such materials to be disclosed “preliminary to or in connection with a judicial proceeding.” Judge Judith Rogers, a Clinton appointee, wrote in a majority opinion that an impeachment trial counts as a judicial proceeding. And, thus, a House committee may potentially obtain grand jury materials if it seeks them as part of an impeachment inquiry. Her opinion was joined by Judge Thomas Griffith, a George W. Bush appointee.

It is likely that the Trump administration will seek Supreme Court review of Tuesday’s decision, and that it will also seek a stay of the decision while the justices are considering what to do with the case.

Rao’s argument basically allows the Trump administration to run out the clock

Rao does not contest the majority’s broad claim that an impeachment trial is judicial in nature, or that a House committee conducting an impeachment inquiry may be allowed to see grand jury materials. But she argues that the House should be required to go back to the trial court and prove, once again, that it is actually seeking these particular materials as part of an impeachment inquiry. After all, she claims, impeachment is over.

“Much has happened since the district court authorized disclosure in October,” Rao writes, before briefly recounting the past impeachment proceedings against Trump. “If impeachment is no longer the primary purpose of the Committee’s application, the court could not authorize disclosure because the grand jury records would not be sought ‘preliminarily to or in connection with’ an impeachment trial or inquiry.”

The practical impact of Rao’s opinion would be that the House would have to go back to the trial court, most likely spend months convincing that court to issue a new order seeking the grand jury documents, and then wait even longer while this case proceeds on appeal. By the time the House is done litigating this case, Trump could very well be out of office and the case would be moot. So, while Rao’s dissent would not shut down this case entirely, it would delay it for so long that the case would likely become meaningless.

There are a few legal problems with Rao’s argument. One is that, as Rogers points out in the majority opinion, the House Judiciary Committee “has repeatedly stated that if the grand jury materials reveal new evidence of impeachable offenses, the Committee may recommend new articles of impeachment.” Nothing in the Constitution immunizes the president from a second impeachment proceeding if a first one ends in acquittal — at least if new evidence emerges suggesting that the president committed a different crime that was not the subject of the first impeachment trial.

Rao’s opinions place Congress in a trap

Additionally, Rao’s Grand Jury dissent appears to fit a pattern. Last October, her court handed down Trump v. Mazars USA, a case asking whether Trump can shield many of his financial records from congressional oversight (this case will be heard by the Supreme Court later this month).

As the majority opinion explained in Mazars, Congress has broad authority to conduct investigations so long as those investigations have a “valid legislative purpose,” which includes any investigation that touches on a matter “on which legislation could be had.” Judge David Tatel’s majority opinion held that the House may investigate Trump’s financial records because those records could reveal whether stricter presidential ethics laws are needed.

Rao, meanwhile, wrote a dissent arguing that the Constitution forbids Congress from investigating “illegal conduct by the President” unless that investigation takes place during an impeachment investigation.

As Tatel noted in the court’s majority opinion, “no case law supports the dissent.” Rather, the Supreme Court’s decisions establish that “Congress’s ‘authority ... to require pertinent disclosures in aid of its own constitutional power is not abridged’ merely ‘because the information sought to be elicited may also be of use’ in criminal prosecutions.”

Admittedly, the legal issues in Mazars and Grand Jury are rather distinct. Rao’s Mazar’s dissent argued that it is unconstitutional for Congress to investigate the president outside of an impeachment inquiry. Grand Jury, by contrast, deals with a much narrower question of who is allowed to see grand jury materials under the Federal Rules of Civil Procedure.

But it’s hard not to see the trap Rao has built around Congress. Her Mazars opinion claims that Congress has only one path it can use to investigate President Trump. Then, when Congress traveled down the very same path that Rao identified in Mazars, Judge Rao invents a new limit — suggesting that Congress may only get one shot at an impeachment inquiry.

Moreover, as Tatel suggests in the Mazars majority opinion, Rao appears to have invented the constitutional limit she placed on congressional investigations out of thin air.

The Atlantic’s David Frum wrote that Rao’s Mazars dissent was “wild talk that would shut down almost all congressional investigations.” Maybe that’s the point — at least as long as Trump is in the White House.

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