Earlier today, the Supreme Court issued an order list covering several cases. For political junkies, the big news from the list concerned Department of [Obstructing] Justice vs. House Committee on the Judiciary. The issue in this case is whether the House can get access to the grand jury proceedings from the Mueller investigation. Technically, the issue is whether the House’s investigation of whether Trump committed potential impeachable offenses is a “judicial proceeding” for the purposes of the Federal Rule of Criminal Procedure’s exception to the general rule of grand jury secrecy.
The big impact of today’s order is that it extends the hold on the release of those proceedings. And, given the other cases already on the docket for the Fall, it is likely that the Supreme Court will not hear arguments on this matter until December. In short, this decision means that those records will not become public until after the election.
Now how this reflects on the Supreme Court depends upon what happens in the election. If Trump loses, arguably, the case would be moot as any opinion would not come until after Trump leaves office and could no longer be impeached. It is possible that the Supreme Court could reach this issue on the theory that, given the time that it takes for the grand jury to investigate followed by the time that it takes for impeachment, the issue is capable of recurring yet escaping review (as the delay all but guarantees that any president’s term will expire before any future case with similar issues could be resolved). This exception to mootness probably better applies to the claim that the House and Senate are no longer conducting impeachment proceedings.
On the off chance that Trump is re-elected, it is possible that the Supreme Court could dismiss the case as “improvidently granted.” In other words, the Supreme Court can decide after seeing the briefs and hearing oral argument that the case really didn’t merit Supreme Court review and that the lower court’s ruling can stand. As bad as a mootness finding would be, this disposition would be worse. It would mean that some justices might have voted to take the case merely to delay the release of the documents. (Technically, it only takes four justices voting in favor of taking a case for the Supreme Court to take that casetiorari and five justice to dismiss a case. As such, it is theoretically possible for there to be a 5-4 split on dismissing in which the four justices who wanted to take a case lose to the five who did not want to take the case. However, it is somewhat unusual for a justice to insist on taking a case without having a chance at getting a 5-4 majority on the merits, and there is a tradition against dismissing a case as improvidently granted when four of the justices who voted to take the case still want a ruling on the merits.)
Finally, there is a chance that the Supreme Court might reach the merits. However, the ultimate resolution of the merits is almost secondary. At the federal level, the rules of court operate to handle procedural issues not resolved by statute. So, regardless of which way the Supreme Court goes, Congress could draft a statute defining when Congress can get grand jury materials in connection with investigations into misconduct by a public official. And, the Supreme Court ruling would only be based on the current language of the rule. The Supreme Court can amend the rules of procedure at any time. (There is a formal process, but — if the Supreme Court in its opinion says that the rules committee needs to look at changing the rule to specifically address this issue — it is likely that the rules committee would follow that suggestion.)
Regardless of the ultimate outcome of this case, the top line item is that the Supreme Court has effectively decided that the voters will not know the truth about the Mueller investigation until after the November election. Whether that decision is legally correct or not and may serve the purposes of the justice system or not, the decision does not serve the voters or the political system well.
