Trump Appointee Neomi Rao Has Some Strong Opinions. Even Her GOP-Tapped Colleague Disagrees.
Rao has written multiple lengthy dissents against the House's lawsuits, and fellow judges are chiding her over the arguments.
March 11, 2020 at 11:15 AM
7 minute read
One year into her tenure on the U.S. Court of Appeals for the D.C. Circuit, Judge Neomi Rao has found herself at the heart of crucial rulings on the U.S. House's oversight powers—on the dissenting side.
Rao was the dissenting judge in the court's October ruling that upheld the House Oversight and Reform Committee's subpoena for President Donald Trump's tax documents from Mazars. She was also one of three judges who would have granted an en banc rehearing of that case. Then on Tuesday, she again penned a dissent, this time in the House Judiciary Committee's application to get grand jury materials redacted from special counsel Robert Mueller's report.
A Trump appointee, Rao has found her arguments knocked by colleagues from both sides of the aisle: By a Clinton appointee in Mazars (an Obama appointee joined that opinion) and in the grand jury case by both Bush and Clinton appointees.
Rao wrote that the D.C. Circuit's recent ruling on former White House counsel Don McGahn's testimony, which found the House Judiciary Committee did not have Article III standing to bring forward the suit, meant the committee also could not ask the court to compel the Justice Department to hand over the grand jury information redacted from special counsel Robert Mueller III's report.
She said there were two different components to the House getting the grand jury materials: The court had to not only authorize the release but also then compel the Justice Department to provide them.
That second stage, Rao wrote, triggered Article III authorities for the court that foreclosed the committee from seeking judicial review.
"Here, the district court's order to DOJ for disclosure of the grand jury materials required an exercise of Article III power, because nothing in the grand jury context alters the court's power in relation to the executive branch," Rao wrote. "Suspending the standing requirements of Article III in this context would constitute an exception to justiciability not supported by the Constitution, Rule 6(e), or the general supervisory power over grand juries."
She also wrote that she believed Chief District Judge Beryl Howell "did not abuse [her] discretion" in initially ruling for the release of the materials, as the impeachment trial against President Donald Trump had not yet taken place.
However, Rao found, after the Senate acquitted Trump last month, "remand is necessary for the district court to address whether authorization is still warranted."
She also suggested the case could be moot altogether with the end of the impeachment trial, writing that the panel's majority "simply turns a blind eye to these very public events and the parties have not submitted any additional briefs."
"Yet, because I conclude that the Committee lacks standing for compulsory process, mootness is irrelevant: The district court lacked jurisdiction at the outset to compel DOJ to release the grand jury materials," Rao wrote.
It's not uncommon for judges authoring a court's majority or concurring opinion to address arguments made in dissenting opinion. On Tuesday, Judge Thomas Griffith—who wrote the majority opinion on McGahn—released a concurring opinion aimed solely at countering claims raised by Rao.
"Unlike McGahn, this case does not involve a suit between the political branches over executive-branch documents or testimony. Instead, it involves an application for access to records of the grand jury, whose disclosure the district court has traditionally controlled," he wrote.
Griffith wrote that Rao's claim that possession of the documents is "dispositive" in determining the case, "elevates form over substance." And he said the dissent's "distinction between authorization and compulsion strikes me as untenable on its own terms."
"Finally, although I agree with the dissent that we have an independent obligation to assure ourselves of our jurisdiction, we need not chase jurisdictional phantoms," Griffith added.
Judge Judith Rogers also briefly touched on Rao's dissent in the court's majority opinion, writing that the "distinction that our dissenting colleague reads into the district court's order between authorizing and ordering release is not raised by either party and rests on a flawed premise."
"Our colleague assumes that the House of Representatives is seeking compulsory judicial action against the executive branch," Rogers wrote. "Because the Department of Justice is simply the custodian of the grand jury materials at issue however, the instant case is unlike inter-branch disputes where Congress issued subpoenas and directed executive branch officials to testify and produce their relevant documents."
Tuesday wasn't the first time a fellow judge has criticized Rao over her approach to one of the House lawsuits. In her dissenting opinion over the Mazars subpoena, Rao said lawmakers should have to start an impeachment inquiry in order to obtain information about a sitting president that could prove damaging, rather than using their legislative authorities.
"The most important question is not whether Congress has put forth some legitimate legislative purpose, but rather whether Congress is investigating suspicions of criminality or allegations that the President violated a law. Such investigations may be pursued exclusively through impeachment," Rao wrote. "The House may not use the legislative power to circumvent the protections and accountability that accompany the impeachment power."
In the court's majority opinion for that case, Judge David Tatel said Rao's argument "would reorder the very structure of the Constitution."
"The dissent's approach would not even allow Congress to make the quintessentially legislative judgment that some concerns about potential misconduct or illegality are better addressed through oversight and legislation than impeachment," Tatel wrote. "Worse still, the dissent's novel approach would now impose upon the courts the job of ordering the cessation of the legislative function and putting Congress to the Hobson's Choice of impeachment or nothing."
Tuesday's Mueller grand jury ruling is all but certain to be posed to the full D.C. Circuit, if the Justice Department seeks an en banc rehearing of the case. Rao will then get a chance to weigh in again on it.
But she is unlikely to be able to express her viewpoint on another major House lawsuit currently at the D.C. Circuit, the one on McGahn's testimony. Prior filings in that case suggest that both Rao and fellow circuit Judge Gregory Katsas are recused from the matter, as Trump appointed both to the bench after they served in his administration in roles in which they would have interacted with McGahn.
That will leave just two Republican-appointed active judges on the circuit as part of the decision on whether to rehear the McGahn case.
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