Douglas Letter, general counsel to the U.S. House of Representatives. (Photo: Jason Doiy/ALM)

A federal appeals judge and the top House attorney tangled over what would happen if the Justice Department didn't hand over grand jury information redacted from the Mueller report, resulting in the House lawyer conjuring up a hypothetical gunfight between lawmakers' top security enforcer and the attorney general's security detail.

With the House and Trump administration repeatedly fighting over subpoenas, Democrats have shied away from the House using its contempt powers or having the chamber's sergeant-at-arms penalize those who don't comply with congressional mandates for information. But House general counsel Douglas Letter found himself describing that scenario during a high-profile hearing Friday at the U.S. Court of Appeals for the D.C. Circuit.

Judge Neomi Rao noted that the grand jury secrecy rule, which the Justice Department has invoked to block the House from reviewing information blacked out of former special counsel Robert Mueller's report, doesn't explicitly state that the Justice Department could be compelled to hand over the materials.

And Rao, a former Trump administration official appointed to the bench last year, asked Letter, hypothetically, what would happen if a court authorized the release of the information but didn't directly order the DOJ to provide it to House Democrats.

Letter appeared taken aback by the suggestion. If the Justice Department refused to turn over that information in spite of a court order authorizing its release, Letter said the House might have little choice but to send its sergeant-at-arms to the Justice Department to collect the materials.

Their exchange then went to a strange place.

"If this court rules the House is entitled to this material, the attorney general is going to say no?" Letter asked.

Letter then, half-jokingly, envisioned the sergeant-at-arms getting in a "gunbattle with Mr. Barr's FBI security detail."

But Rao said she wasn't asking about what the House might do. Rather, she pressed Letter over exactly what the grand jury rule entailed and whether a district court had the power to compel the Justice Department to release the material.

"I have to admit I have never thought of this before," Letter said. "I guess because as a Justice Department attorney, I think I would have been embarrassed to stand up here and say if a 6(e) order was issued, the Justice Department would not comply with it."

And he said the other two remedies for the House—the sergeant-at-arms forcibly retrieving the information or forcing a government shutdown—shows why lawmakers have to go to court to get the material.

While he jested about the gunbattle, Letter made clear the House is serious about its right to see that secret information in the Mueller report, labeling the prospect of the DOJ defying a court order authorizing the release of the information "stunning" and "unfathomable."

Mark Freeman of the Justice Department's Civil Division.

When Rao earlier asked the same question of Justice Department lawyer Mark Freeman, he said he couldn't give an answer on behalf of the attorney general and would have to "take it back" to the DOJ.

Letter also noted that Chief District Judge Beryl Howell had ordered the Justice Department to turn over the materials, after Rao pointed out that request wasn't explicitly made by the House in its lawsuit.

"You were lucky, I guess," Rao said.

The Democratic-controlled House Judiciary Committee filed suit for the grand jury information redacted from Mueller's report last year, saying it was key to lawmakers' decision on whether to impeach President Donald Trump. Howell agreed in an opinion and order issued in October that required the DOJ to present the materials to certain members of Congress.

However, the House voted along party lines last month to impeach Trump for obstruction of Congress and abuse of power, charges stemming from the president's pushing of Ukraine to investigate his political rival, former Vice President Joe Biden, while withholding military aid from the country.

Lawmakers aren't ruling out passing additional articles against Trump related to the Mueller report. House lawyers now argue that they need those secret materials to make that final decision.

Earlier in Friday's arguments, Freeman conceded that the DOJ believes the House could petition the court for the grand jury information. But he said the materials could not be used for a Senate impeachment trial, as the House said in its briefs, because the district court order only applied to the decision-making process before the articles were drafted.

And he urged the three-judge panel to rule that the House hadn't shown a particularized need for the redacted information.

Judge Judith Rogers seemed skeptical of those claims. She said that, even if most of the grand jury secrets weren't redacted from the report, the blocked-out details could ultimately prove crucial to the House's probe.

"All we know is that a single sentence can be devastating, and can lead to both exculpatory and incriminating evidence," she said.

At the end of the hearing, Freeman called for Congress to enact a statute to specifically address its access to grand jury materials so that the courts are not forced into the role of "evidentiary gatekeeper" between the legislative and executive branches.

At an earlier argument, addressing whether former White House counsel Don McGahn could be forced to testify before Congress, Justice Department attorney Hashim Mooppan cautioned that the courts could be politicized and lose credibility if they came to regularly preside over "purely political" disputes between the executive and legislative branches.

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