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[ORAL ARGUMENT HELD JANUARY 3, 2020]
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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

No. 19-5288

MOTION TO STAY MANDATE PENDING
PETITION FOR WRIT OF CERTIORARI
Under Federal Rule of Appellate Procedure 41(d)(1), respondent U.S.
Department of Justice respectfully requests that this Court stay the issuance of its
mandate pending final disposition of the government’s forthcoming petition for a writ
of certiorari. See Fed. R. App. P. 41(d)(2)(ii). The mandate is presently set to issue on
May 1, 2020. The Department further requests that, if the motion is denied, the
Court stay issuance of the mandate for a reasonable period to permit the Department
to seek a stay from the Supreme Court. We have consulted petitioner Committee on
the Judiciary, which opposes this request and intends to file a response.
In this case, the Court concluded that a presidential impeachment proceeding
in the Senate qualifies as a “judicial proceeding” for purposes of Federal Rule of
Criminal Procedure 6(e)(3)(E)(i). That holding raises a “substantial question”
warranting Supreme Court review. Fed. R. App. P. 41(d)(1). The plain meaning of
the term “judicial proceeding” encompasses proceedings before a court—not a

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legislative body carrying out the inescapably political task of impeachment. The use
of that term elsewhere in Rule 6(e) and the Federal Rules of Criminal Procedure in
general confirm this straightforward understanding of the term. And reading the term
to go beyond its plain meaning raises significant separation of powers concerns by
rendering key portions of Rule 6(e) inoperative or unconstitutional in application, and
permitting Congress to seek, on an assertion of relevance, grand jury materials
without meeting the standards ordinarily required of other litigants, with concomitant
potential for harassment of the Executive Branch.
There is also “good cause” for the requested stay. Fed. R. App. P. 41(d)(1).
Unless the mandate is stayed, this Court’s decision will upset the status quo by
requiring the Department to turn over the grand jury materials at issue, irreversibly
breaching the secrecy of those materials, and raising serious questions about whether
they could ever be retrieved from Congress once in Congress’s possession. See Senate
Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080, 1086 (D.C. Cir. 2017)
(“[T]he separation of powers, including the Speech or Debate clause, bars [a] court
from ordering a congressional committee to return, destroy, or refrain from
publishing” information that has come into its possession). Nor is there any harm to
the Committee from a stay: any impeachment inquiry appears to be dormant, and
since the Court’s opinion in this case, the Committee has neither inquired about the
materials nor sought to terminate the Court’s administrative stay.

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STATEMENT
1. In July 2019, the House Committee on the Judiciary filed a petition in
district court seeking grand jury materials from Special Counsel Robert S. Mueller,
III’s investigation into Russian interference in the 2016 presidential election. The
district court granted the application in substantial part over the Department’s
opposition. The court held that a Senate impeachment proceeding qualifies as a
“judicial proceeding” for purposes of Rule 6(e)(3)(E)(i), which authorizes the release
of grand jury materials “preliminarily to or in connection with a judicial proceeding.”
The court also held that the Committee had shown a “particularized need” for the
materials because the materials were relevant to an impeachment inquiry.
2. The Department appealed and sought a stay pending appeal. This Court
issued an administrative stay, Order of October 29, 2019, and later instructed that the
stay would remain in place “pending further order of the court,” Order of Nov. 11,
2019.
A panel of this Court affirmed after briefing and argument on the merits. The
panel rejected the argument that a Senate impeachment trial is not a “judicial
proceeding” under Rule 6(e)(3)(E)(i). It first concluded that the question was settled
by this Court’s prior decisions in 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), cert. denied, 140 S. Ct. 597
(2020). Op. 11-12. Acknowledging, however, that neither decision “explain[ed] in
detail why impeachment qualifies as a judicial proceeding,” the panel stated that “[t]he
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constitutional text confirms that a Senate impeachment trial is a judicial proceeding”
and that the term “judicial proceeding” in Rule 6(e) “has long and repeatedly been
interpreted broadly.” Op. 12-13. The panel also stated that “historical practice”
supported its conclusion, citing past examples as evidence of “a common-law
tradition . . . of providing grand jury materials to Congress to assist with congressional
investigations,” as well as an “established practice” of such disclosures under Rule
6(e). Op. 13-14.
The panel discounted the separation of powers concerns that might arise from
“invit[ing] courts to pass judgment on the legal sufficiency of a particular
impeachment theory” because courts could “apply the particularized need standard to
mitigate such concerns in the impeachment context because the district court need
only decide if the requested grand jury materials are relevant to the impeachment
investigation . . . without commenting on the propriety of that investigation.” Op. 15;
accord Op. 18. This low threshold for disclosure, the panel concluded, “avoids the
potentially problematic second-guessing of Congress’s need for evidence that is
relevant to its impeachment inquiry.” Op. 19.
The panel also held that the other factors traditionally favoring grand jury
secrecy were not significantly implicated, given the public attention already focused on
the Special Counsel’s Report and the Committee’s adoption of handling protocols
that would limit access to the information. Op. 19-22. Finally, the panel rejected the
argument that the disclosure ordered by the district court was overbroad in including
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numerous redactions never reviewed by the district court in camera, including one
redaction the Committee conceded it did not need. Op. 23-24.
Judge Rao dissented. She agreed with the majority that “an impeachment
investigation is ‘preliminarily to or in connection with a judicial proceeding,’” and that
“the standards for particularized need must be uniquely adapted” for impeachment
inquiries, Diss. 1, 5, but would have “remand[ed] to the district court to consider in
the first instance whether the Committee can continue to demonstrate that its inquiry
is preliminary to an impeachment proceeding and that it has a ‘particularized need’ for
the grand jury records” given the Senate’s acquittal of the President on impeachment
articles during the pendency of the appeal, Diss. 2. Judge Rao’s dissent primarily
focused on the question of whether the Committee had Article III standing to seek an
order compelling the Department to disclose the materials. Diss. 8-45.
In a brief concurrence, Judge Griffith noted that “this case does not involve a
dispute between the political branches over executive-branch documents or
testimony,” and observed that courts have on several past occasions “approved the
disclosure of grand jury materials to the House,” demonstrating that such requests
have “traditionally been thought capable of (and indeed to require) judicial
resolution.” Concur. 1.
3. This Court’s opinion and judgment issued on March 10, 2020, and absent a
stay, the mandate would issue on May 1. See Fed. R. App. P. 41(b). Although it is
unclear, an order issuing the mandate and divesting this Court of jurisdiction would at
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least arguably constitute a “further order” dissolving the administrative stay that was
entered by this Court on October 29, 2019, and currently remains in effect.
ARGUMENT
To obtain a stay of the mandate “pending the filing of a petition for a writ of
certiorari in the Supreme Court,” a movant “must show that the [certiorari] petition
would present a substantial question and that there is good cause for a stay.” Fed. R.
App. P. 41(d)(1). This requires a party to demonstrate a reasonable probability of
succeeding on the merits and injury absent a stay. See, e.g., United States v. Warner, 507
F.3d 508, 510-11 (7th Cir. 2007) (Wood, J., in chambers); Nara v. Frank, 494 F.3d
1132, 1133 (3d Cir. 2007); California v. American Stores Co., 492 U.S. 1301, 1307 (1989)
(O’Connor, J., in chambers).
This standard is easily met here. This case raises substantial legal issues of the
type appropriate for Supreme Court review, including separation of powers concerns
that affect all three branches of government in the exercise of one of Congress’s most
significant powers. In addition, without a stay of the mandate, the Department will be
forced to turn over the disputed grand jury materials. The secrecy of those materials,
once lost, cannot be regained, and there are grave doubts that any court would have
the authority to claw back those materials once disclosed.
1. The Department’s forthcoming petition for certiorari will present a
“substantial question” for the Supreme Court’s review on which the Department has
at least a reasonable probability of success. Fed. R. App. P. 41(d)(1). Whether and
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under what circumstances Congress may resort to the courts to seek grand jury
materials generated in a criminal investigation in aid of an impeachment inquiry is
plainly a question of great significance to all three branches of government, as well as
to the functioning of the grand jury system in high-profile, politically-charged matters.
The text and structure of Rule 6(e), as well as ordinary principles of statutory
interpretation, make clear that the Rule contemplates proceedings before a court, not a
legislative body. The panel did not dispute that the ordinary meaning of the term
“judicial proceeding” encompasses only such proceedings. Nor did it dispute that
where the term appears elsewhere in Rule 6(e)—in Rules 6(e)(3)(F) and (G)—it is
confined to proceedings before a court. The panel instead stated that the term carried
a different meaning in Rule 6(e)(3)(E)(i) because “context” dictated a different
meaning, notwithstanding the presumption of consistent usage. Op. 13. But the
panel opinion does not specify what other “context” could be meant; after all, Rules
6(e)(3)(F) and (G) prescribe the procedures to be used in adjudicating a petition under
Rule 6(e)(3)(E)(i). It is precisely in those circumstances that the presumption of
consistent usage is at its strongest. In addition, the only other use of the term in the
Rules of Criminal Procedure—in Rule 53—also unambiguously refers to proceedings
before courts (not Congress). To the extent the panel’s reference to “context”
acknowledges that treating an impeachment trial as a “judicial proceeding” is illogical
in the context of Rules 6(e)(3)(F) and (G), that simply underscores that Rule
6(e)(3)(E)(i) does not treat impeachment as a “judicial proceeding” in the first place.
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The panel also expressed the view that a Senate impeachment trial is a “judicial
proceeding” in a constitutional sense. See Op. 12-13. But even assuming that
impeachment is “judicial” in some constitutional sense—though even that is dubious,
see Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 908 (1991) (Scalia, J.,
concurring in part)—that is ultimately beside the point. The question here is the
sense in which Rule 6(e) uses the term “judicial proceeding.” The panel pointed to
nothing in the ordinary meaning of that term or the text and structure of the Rule that
supports reading it to reach impeachment proceedings. Instead, the panel asserted
that Rule 6(e)(3)(E)(i) must be read “broadly.” Op. 13. But the Supreme Court has
reached the opposite conclusion, emphasizing that “[i]n the absence of a clear
indication in a statute or Rule, we must always be reluctant to conclude that a breach
of [grand jury] secrecy has been authorized.” United States v. Sells Eng’g, 463 U.S. 418,
425 (1983); see In re Sealed Case, 250 F.3d 764, 769 (D.C. Cir. 2001) (“[E]xceptions to
Rule 6(e) must be narrowly construed”). Indeed, the Supreme Court has never
endorsed the (largely pre-Sells) line of cases reading Rule 6(e) “broadly,” instead
reserving the “knotty question” whether Rule 6(e)(3)(E)(i) encompasses anything
more than “garden-variety civil actions or criminal prosecutions.” United States v.
Baggot, 463 U.S. 476, 479 n.2 (1983).
The panel also suggested that historical practice supported its conclusion. Op.
13-14. Although Rule 6(e) “codifie[d] the traditional rule of grand jury secrecy,” Sells
Eng’g, 463 U.S. at 425, there is no apparent pre-Rule tradition of court-ordered
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disclosures of grand jury material in connection with impeachment proceedings.
Indeed, the majority identified just one arguable pre-Rule example of a disclosure of
secret grand jury material, otherwise relying on Congress’s use of public materials “to
investigate allegations of election fraud or misconduct by members of Congress.”
Op. 13-14; but see Diss. 21, 22 n.9. And post-Rule practice, Op. 14, cannot change the
plain meaning of the text.
The panel’s interpretation of Rule 6(e)(3)(E)(i) also creates, rather than avoids,
significant separation of powers issues, further demonstrating the existence of a
“substantial question” for Supreme Court review. Unlike any other “judicial
proceeding” under the Rule, no court can review whether the Senate’s impeachment
proceeding violates the impeachment powers textually committed to it by the
Constitution. See Nixon v. United States, 506 U.S. 224, 237-38 (1993). In addition,
although Rule 6(e)(3)(E) generally permits a district court to guard against the
unnecessary disclosure of grand jury materials by authorizing disclosures “at a time, in
a manner, and subject to any other conditions that it directs,” that important
prophylaxis is unavailable in disclosures to Congress, because “the separation of
powers, including the Speech or Debate clause, bars [a] court from ordering a
congressional committee to return, destroy, or refrain from publishing” information
that has come into its possession. Senate Permanent Subcomm. on Investigations v. Ferrer,
856 F.3d 1080, 1086 (D.C. Cir. 2017); see Op. 21. The panel’s reading would thus
render an important portion of Rule 6(e) unconstitutional in application.
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Moreover, the “particularized need” test that applies to all applicants for
disclosure under Rule 6(e)(3)(E) is in considerable tension with the Senate sole power
to try impeachments. The Supreme Court has explained that the inquiry required by
the particularized need analysis “cannot even be made without consideration of the
particulars of the judicial proceeding with respect to which disclosure is sought.”
Baggot, 463 U.S. at 480 n.4. Thus, the Supreme Court has instructed that district
courts facing requests for disclosure must carefully scrutinize the relationship between
the legal claims in the “judicial proceeding” at issue and the grand jury materials
sought. In Douglas Oil Co. v. Petrol Stops Northwest, for example, the Court explained
that the district court, in assessing particularized need, was required to assess the
“contours of the conspiracy respondents sought to prove in their civil actions” in
order to weigh the claimed need for the grand jury information, withholding material
that is useful only as “general discovery.” 441 U.S. 211, 229 (1979).
The panel recognized the potential for “problematic second-guessing of
Congress’s need for evidence” in applying this standard. Op. 19. But it concluded
that this could be resolved by treating impeachment inquiries as “different” from all
other requests for grand jury materials. Op. 18. Although the Supreme Court has
said that mere relevance is not a sufficient ground for disclosure of grand jury material
to States, Illinois v. Abbott & Assocs., Inc., 460 U.S. 557, 568 (1983), or even within the
Executive Branch, Sells Eng’g, 463 U.S. at 445, the panel concluded that turning over

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“all relevant materials” in response to a congressional request would resolve any
constitutional concerns. Op. 18.
This approach to the particularized need standard has never been endorsed by
the Supreme Court. Yet even this departure from the usual standard for disclosure
does not avoid the problem; the panel acknowledged that “courts must not rubber
stamp congressional requests for grand jury materials,” and might in some
circumstances be required to conduct “further inquiry” to determine if the grand jury
materials were in fact relevant to the Committee’s inquiry. Op. 24; see Op. 15 (court
must “decide if the requested grand jury materials are relevant to the impeachment
investigation”).
Thus, even under the panel’s approach, courts would be placed in the difficult
position of determining whether grand jury material was “relevant” to a particular line
of inquiry or theory of impeachment—a decision that would necessarily require
assessing the “contours” of the Committee’s theory. Douglas Oil, 441 U.S. at 229. It is
unclear on what basis a district court could make that assessment in the context of a
proceeding exclusively committed under the Constitution to the legislative branch.
See Diss. 34-39 (discussing historical “separation between impeachment and the
judicial process,” including in determinations of relevance); Diss. 44 (observing that
disputes between the parties over “the litigating positions of the President and the
House in the impeachment trial . . . demonstrate[] the practical impediments to
judicial resolution of these issues”). And the potential for abuse is clear: a House
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opposed to a future President could seek grand jury materials from investigations of
individuals with only tenuous connections to the President, all under the aegis of
conducting an impeachment investigation, with no meaningful restraint.
Even aside from the unnecessary separation of powers concerns created by
departing from the plain meaning of Rule 6(e)(3)(E)(i), the issue is important to the
functioning of the grand jury system. As the Supreme Court has explained, grand jury
secrecy exists in significant part to protect “the functioning of future grand juries” by
ensuring that witnesses will be willing to provide “frank and full testimony.” Douglas
Oil, 441 U.S. at 222. The “[f]ear of future retribution or social stigma” or concern
that “those against whom [witnesses] testify would be aware of their testimony” is
particularly acute in high-profile and politically-charged matters, as is the possibility
that witnesses may be offered “inducements” in exchange for particular testimony. Id.
at 219, 222. The panel suggested that these concerns were reduced because the
Committee has promised to “restrict access to the grand jury materials.” Op. 20. Of
course, the Committee still retains discretion “to make the grand jury material public
at any time,” id., and represented here that it sought to make public use of the material
in the course of presenting its case to the Senate on the articles of impeachment.
Witnesses in future proceedings very likely will be affected by the knowledge that their
testimony will be disclosed to members of Congress for use—including public use—
in inevitably political impeachment proceedings. And that is particularly true where

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disclosure would occur on a Committee majority’s assertion that the material is
relevant to an impeachment inquiry and nothing more.
2. There is also “good cause” for the requested stay. Fed. R. App. P. 41(d)(1).
As the Supreme Court has explained, once grand jury material has been disclosed, a
court “cannot restore the secrecy that has already been lost.” Sells Eng’g, 463 U.S. at
422 n.6. Those concerns are particularly acute in this context; as the panel observed,
“courts lack authority to restrict the House’s use of the materials or withdraw them if
improvidently issued or disseminated.” Op. 21; see Ferrer, 856 F.3d at 1086. A stay of
the mandate is therefore warranted to preserve the current administrative stay of the
district court’s order and prevent the irremediable breach of grand jury secrecy that
would occur in the absence of a stay.
In addition, the Committee would not be prejudiced by a stay, and the public
interest favors allowing an orderly resolution of the important questions presented
here. Although the Committee previously stated that it needed the materials for use
in a Senate trial, the articles of impeachment the Committee previously referred have
already been disposed of by the Senate. See H. Res. 755, 116th Cong. (2019); 166
Cong. Rec. S937-38 (daily ed. Feb. 5, 2020). In addition, although the Committee has
represented that its impeachment inquiry is ongoing, no hearings are scheduled on its
public calendar, and there is no indication that time is of the essence. See “Committee
Activity,” Committee on the Judiciary, https://judiciary.house.gov/calendar/. The
Committee has not requested the materials in the time since the panel’s opinion in
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this case, nor has it moved to dissolve the administrative stay. Allowing the Supreme
Court time to consider whether to take up the important questions presented far
outweighs any delay to the Committee’s inquiry, which appears to be dormant in any
event.
3. In the event this Court denies a stay of the mandate, the Department
respectfully requests that the Court stay the mandate for a reasonable time to permit
the Solicitor General to apply for a stay from the Supreme Court.
4. We have consulted counsel for the Committee, and they have indicated that
the Committee opposes this request and will file a response.

Respectfully submitted,
MARK R. FREEMAN
MICHAEL S. RAAB
/s/ Brad Hinshelwood
BRAD HINSHELWOOD
(202) 514-7823
Attorneys, Appellate Staff
Civil Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

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CERTIFICATE OF COMPLIANCE
I hereby certify that this motion satisfies the type-volume limitation in Rule
27(d)(2)(A) because it contains 3,361 words. This motion complies with the typeface
and type-style requirements of Rule 32(a)(5) and Rule 32(a)(6) because it was prepared
using Microsoft Word 2013 in Garamond, 14-point font, a proportionally-spaced
typeface.
/s/ Brad Hinshelwood
Brad Hinshelwood

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CERTIFICATE OF SERVICE
I hereby certify that on April 24, 2020, I electronically filed the foregoing with
the Clerk of the Court by using the appellate CM/ECF system. I further certify that
the participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
/s/ Brad Hinshelwood
Brad Hinshelwood