United States District Court, District of Columbia
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
MEMORANDUM AND ORDER
A. Howell Chief Judge
Department of Justice (“DOJ”) seeks to stay this
Court's order, issued on October 25, 2019, requiring DOJ
to disclose, by October 30, 2019, to the House Judiciary
Committee (“HJC”) the grand jury material
redacted, pursuant to Federal Rule of Criminal Procedure
6(e), from the public version of Special Counsel Robert S.
Mueller III's Report On The Investigation Into
Russian Interference In The 2016 Presidential Election
(“Mueller Report”), as well as any underlying
transcripts or exhibits referenced in those redactions.
DOJ's Mot. to Stay Disclosure Order Pending Appeal
(“Mot. Stay”), ECF No. 48. For the reasons
set out below, the motion for a stay is denied.
is well settled that a stay of a final judicial order pending
appeal is an “extraordinary remedy.” Cuomo v.
NRC, 772 F.2d 972, 978 (D.C. Cir. 1985) (per curiam).
The Supreme Court has explained that “[a] stay is an
‘intrusion into the ordinary processes of
administration and judicial review, '” Nken v.
Holder, 556 U.S. 418, 427 (2009) (quoting Va.
Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925
(D.C. Cir. 1958) (per curiam)), and, further, that such a
stay “is not a matter of right, even if irreparable
injury might otherwise result to the appellant, ”
id. (quoting Virginian R. Co. v. United
States, 272 U.S. 658, 672 (1926)). The party requesting
a stay bears the burden of showing that the circumstances of
a particular case justify an exercise of judicial discretion
upon consideration of four “traditional, ”
id. at 434, and “stringent requirements,
” Van Hollen v. FEC, Nos. 12-5117 &
12-5118, 2012 WL 1758569, at *1 (D.C. Cir. May 14, 2012) (per
curiam): “(1) the likelihood that the party seeking the
stay will prevail on the merits of the appeal; (2) the
likelihood that the moving party will be irreparably harmed
absent a stay; (3) the prospect that others will be harmed if
the Court grants the stay; and (4) the public interest in
granting the stay, ” Cuomo, 772 F.2d at 974;
see also Nken, 556 U.S. at 434 (listing essentially
same four factors); Hilton v. Braunskill, 481 U.S.
770, 776 (1987) (same).
Supreme Court has indicated that “[t]he first two
factors of the traditional standard are the most critical,
” Nken, 556 U.S. at 434, and has elaborated,
as to the first factor, that “[i]t is not enough that
the chance of success on the merits be ‘better than
negligible, '” id. (quoting Sofinet v.
INS, 188 F.3d 703, 707 (7th Cir. 1999)). Rather,
“[m]ore than a mere ‘possibility' of relief
is required.” Id. (alteration in original)
(internal quotation marks omitted). The D.C. Circuit has
further emphasized the importance of the first factor,
stating that “show[ing] little prospect of
success” on appeal is “an arguably fatal flaw for
a stay application.” Citizens for Responsibility
& Ethics in Washington v. FEC, 904 F.3d 1014, 1019
(D.C. Cir. 2018) (per curiam); see also Sherley v.
Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011)
(“read[ing] Winter [v. Natural Resources
Defense Council, Inc., 555 U.S. 7 (2008)] at least to
suggest if not to hold ‘that a likelihood of success is
an independent, free-standing requirement'”
(quoting Davis v. Pension Benefit Guaranty Corp.,
571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J.
the requisite irreparable injury showing, “simply
showing some ‘possibility of irreparable injury'
fails to satisfy the second factor.” Nken, 556
U.S. at 434-35 (citation omitted) (quoting Abbassi v.
INS, 143 F.3d 513, 514 (9th Cir. 1998)). Rather,
“[a] party moving for a stay is required to demonstrate
that the injury claimed is ‘both certain and
great.'” Cuomo, 772 F.2d at 976 (quoting
Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
1985) (per curiam)). Indeed, “[b]are allegations of
what is likely to occur are of no value since the court must
decide whether the harm will in fact occur.”
Wis. Gas, 758 F.2d at 674 (emphasis in original).
against these standards, analysis of the four requisite
factors mandates denial of the stay.
not likely to succeed on the merits on appeal. The legal
standard for likelihood of success to obtain a stay of an
order is not “a 50% plus probability, ” Wash.
Metro. Area Transit Comm'n v. Holiday Tours, Inc.,
559 F.2d 841, 844 (D.C. Cir. 1977), but is rather a finding
that “the [movant] has raised questions going to the
merits so serious, substantial, difficult and doubtful, as to
make them a fair ground for litigation and thus for more
deliberative investigation, ” id. Here, DOJ
argues, first, that there is a “substantial question as
to whether an impeachment trial constitutes a ‘judicial
proceeding' within the meaning of Rule 6(e), ” Mot.
Stay at 4, because “[i]mpeachment and removal
proceedings in the legislature are not ‘judicial
proceedings' within the ordinary meaning of that
language, ” id. at 2; and, second, that HJC
failed to establish “particularized need” for the
requested materials because (a) HJC failed to articulate a
“specific reason the information is needed,
” id. at 5 (emphasis in original), and (b)
“the amount of information [already] released in
connection with the Mueller Report” minimizes HJC's
need for the materials, id. at 6.
serious infirmities in DOJ's arguments have already been
addressed at length. See In re Application of Committee
on Judiciary, U.S. House of Representatives, for an Order
Authorizing Release of Certain Grand Jury Materials, No.
19-gj-48 (BAH), 2019 WL 5485221, at *11-23 (D.D.C. Oct. 25,
2019) (judicial proceeding); id. at *32-38
(particularized need). Regarding the first argument, DOJ
continues to ignore that the D.C. Circuit has already given
“judicial proceeding, ” as used in Rule 6(e), a
“broad interpretation, ” In re Sealed
Motion, 880 F.2d 1367, 1379 (D.C. Cir. 1989) (per
curiam); that Haldeman v. Sirica, 501 F.2d 714 (D.C.
Cir. 1974) (en banc), and McKeever v. Barr, 920 F.3d
842 (D.C. Cir. 2019), reh'g denied, Order, No.
17-5149 (D.C. Cir. July 22, 2019), docketing petition for
cert., No. 19-307 (U.S. Sept. 5, 2019), are binding D.C.
Circuit precedent that rejected DOJ's position; and that
historical practice, the Federalist Papers, the text of the
Constitution, and Supreme Court precedent all make clear that
impeachment trials are judicial in nature and constitute
the “particularized need” arguments that DOJ
asserts present colorable appealable issues, DOJ is
especially unlikely to succeed given that determinations of
“particularized need” are committed to the
“considered discretion of the district court.”
Douglas Oil Co. of Ca. v. Petrol Stops Nw., 441 U.S.
211, 228 (1979). Moreover, courts have consistently
recognized that the “interest in conducting a full and
fair impeachment inquiry” is a sufficiently
particularized need. In re Request for Access to Grand
Jury Materials, 833 F.2d 1438, 1442 (11th Cir. 1987);
see also Order, In Re: Grand Jury Investigation
of U.S. Dist. Judge G. Thomas Porteous, Jr., No.
2:09-mc-04346-CVSG, at 3 (E.D. La. Aug. 6, 2009),
summarily aff'd sub nom. In re Grand Jury
Proceeding, No. 09-30737 (5th Cir. Nov. 12, 2009);
In re Report & Recommendation of June 6, 1972 Grand
Jury (In re 1972 Grand Jury Report), 370
F.Supp. 1219, 1230 (D.D.C. 1974) (Sirica, C.J.). DOJ's
minimal chance of success on appeal, by itself, is likely
“fatal” to its motion, Citizens for
Responsibility & Ethics in Washington, 904 F.3d at
1019, but DOJ fares no better on the other factors.
the second critical factor, irreparable harm to the moving
party, DOJ must, at a minimum, show an especially high degree
of irreparable harm considering DOJ's failure to
establish a likelihood of success on appeal. See
Cuomo, 772 F.2d at 784 (“Probability of success is
inversely proportional to the degree of irreparable injury
evidenced. A stay must be granted with either a high
probability of success and some injury, or vice
versa.”). DOJ alleges irreparable harm without a stay
because “once the grand jury information is released to
the HJC . . ., information cannot ever be clawed back,
” and DOJ claims that this harm “is particularly
acute here, where there is no guarantee the HJC will keep
this sensitive information secret.” Mot. Stay at 3.
This assertion is predicated on the apparent view that,
despite the HJC's special protocols for handling grand
jury material and keeping that information confidential,
those protocols cannot be trusted. To the contrary, given
those protocols, a disclosure of grand jury material made
under the October 25 Order that is found to be erroneous, can
be clawed back. To the extent that underlying DOJ's
concern is a lack of trust in those protocols, history shows
that HJC has been and can be trusted. See In re 1972
Grand Jury Report, 370 F.Supp. at 1230 (“[H]C] has
taken elaborate precautions to insure against unnecessary and
inappropriate disclosure of these [grand jury] materials. . .
. We have no basis on which to assume that [H]C]'s use of
the Report will be injudicious . . . .”). Indeed,
Congress has still not publicly disclosed the
entirety of the Watergate grand jury report that Chief Judge
Sirica ordered be given to HJC forty-five years ago, in 1974.
See In re Petition for Order Directing Release of the
“Road Map” Transmitted by the Watergate Grand
Jury to the House Judiciary Committee in 1974, No.
1:18-mc-00125-BAH (D.D.C. dismissed without prejudice Apr.
16, 2019). This only demonstrates that disclosure to HJC does
not equate to public disclosure. Finally, the mere chance
that HJC may opt to make some of the grand information public
at some point is not sufficient to establish a
“certain” injury. Cuomo, 772 F.2d at 976
(quoting Wis. Gas, 758 F.2d at 674).
will allowing HJC itself to review the grand jury materials
cause irreparable harm. HJC did not “request the
entire grand jury record” of the Special Counsel's
investigation, HJC's Reply in Support of its App. for an
Order Authorizing the Release of Certain Grand Jury Materials
at 24, ECF No. 33, and this Court-accepting HJC's
proposal that the case proceed with “focused and staged
disclosure, ” id. at 25-ordered the release to
HJC of only two, limited categories of information: the
“‘portions of the Mueller Report that were
redacted pursuant to Rule 6(e), '” and “the
material underlying those redactions-that is, the portions of
the grand jury ‘transcripts or exhibits' cited in
the Report, ” In re Application of the Committee on
the Judiciary, 2019 WL 5485221, at *32 (quoting
HJC's App. for an Order Authorizing the Release of
Certain Grand Jury Materials at 25, ECF No. 1). HJC's
access to this limited material on a confidential basis in
the circumstances of this matter will not harm the interests
that grand jury secrecy is meant to protect, see Id.
at *37-38, and this concern would certainly be insufficient
to justify a stay here, given that DOJ has not established a
likelihood of success on appeal.
third factor, whether HJC will be harmed if the requested
stay is ordered, and the final factor, the public interest,
also weigh against granting DOJ's motion. “[A]n
impeachment investigation involving the President of the
United States” is “a matter of the most critical
moment to the Nation.” In re 1972 Grand Jury
Report, 370 F.Supp. at 1230. As DOJ has acknowledged,
“the Framers themselves specifically determined”
by providing for an impeachment process that there is a
“public interest in immediately removing a sitting
President whose continuation in office poses a threat to the
Nation's welfare.” A Sitting President's
Amenability to Indictment and Criminal Prosecution, 24
Op. O.L.C. 222, 258 (2000). Both HJC itself and the public,
therefore, have an interest in HJC gaining immediate access
to this grand jury material.
Court finds that all four factors-including both critical
factors-favor allowing disclosure to occur while this case is
considered on appeal. Accordingly, it is hereby
that DOJ's Mot. Stay, ECF ...