September legal arguments

Democrats agree to September legal arguments in effort to access secret Mueller evidence

By KYLE CHENEY

House Democrats weighing the impeachment of President Donald Trump have agreed to a two-month schedule of court filings with the Justice Department in an effort to obtain special counsel Robert Mueller’s grand jury material.

Democrats on the House Judiciary Committee, who say accessing Mueller’s files is necessary to determine whether they will ultimately recommend articles of impeachment against Trump, agreed to the timetable, which would likely result in an October ruling. Though that’s a reasonable pace for legal argumentation, it’s sure to frustrate Democrats agitating for Trump’s impeachment, who have argued that the closer their effort gets to presidential primary season, the more impractical it becomes.

There were indications Wednesday that the Justice Department intends to oppose the Judiciary Committee’s effort to get the grand jury information. Though Democrats had pleaded with Attorney General William Barr to support their effort to access Mueller’s material, a lawyer for the Justice Department described herself as “counsel for Defendant” in a notice to the judge. A second department lawyer in the matter simply described herself as “counsel for the department.”

Under the schedule, jointly proposed by the committee and Justice Department, department lawyers would file their first brief in the matter by Sept. 13 and the Judiciary Committee would reply by Sept. 30. Justice Department officials said they expected no oral argument would be necessary in the case, but it’s up to the judge — Chief U.S. District Court of the District of Columbia Judge Beryl Howell — to decide. Howell on Wednesday agreed to the briefing schedule proposed by the committee and the department.

Democrats have not voted to formally open an impeachment inquiry against Trump but argued in their effort to obtain Mueller’s grand jury material that they don’t need to take a vote to declare an “impeachment investigation.” It was a rhetorical escalation that Republicans rejected as political theater. But it’s a distinction that Democrats made forcefully in their legal filing, suggesting that there are no formal procedures to determine when and whether the House is considered to be in an active “impeachment inquiry.”

In their filing, Judiciary Committee Democrats indicated that they intend to rely on Mueller’s grand jury material to inform their questioning of crucial witnesses in his investigation — including former White House counsel Don McGahn, who provided damaging testimony to Mueller, describing potential obstruction of justice by Trump. The committee has indicated that it intends to file a lawsuit to enforce a subpoena for McGahn’s testimony this week but has so far held off while last-minute talks continue.