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. Continue Reading...