The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, the U.S. House of Representatives asked the Supreme Court to reschedule oral arguments in Department of Justice v. House Committee on the Judiciary, concerning whether the House's efforts to obtain grand jury material from the Mueller investigation. The precise question before the Court is whether an impeachment trial before a legislative body is a "judicial proceeding" under the Federal Rules of Criminal Procedure, which would justify the disclosure of such material. The Justice Department, which has custody of the grand jury materials from the Mueller investigation, has refused to provide them to the House Judiciary Committee.
The case is currently scheduled for arguments on December 2. This means that even were the Court to decide the case expeditiously, there would be a new Congress and a new President before the case is resolved. As noted in the House's motion:
The Committee's investigations into misconduct by President Trump, oversight of agency activities during the Trump Administration, and consideration of related legislative reforms have remained ongoing. But a new Congress will convene in the first week of January 2021, and President-elect Biden will be inaugurated on January 20, 2021. Once those events occur, the newly constituted Committee will have to determine whether it wishes to continue pursuing the application for the grand-jury materials that gave rise to this case.
According to the motion, the Justice Department is expected to file a response. Presumably, the Department will oppose the motion, which may simply delay the inevitable, as a new administration might adopt a different interpretation of the Federal Rules.
Under the circumstances, including the possibility that the case could become moot if one or both sides to the dispute changes their positions, it would seem totally appropriate to reschedule the argument. We will see whether the Court agrees.