Appeals court greenlights release of secret Trump battles to block aides from testifying

Details of prosecutors’ battles to obtain testimony from high-level White House aides to Donald Trump may soon become public, a federal appeals court ruled Tuesday in response to a POLITICO petition to access records related to the investigation of Trump’s bid to subvert the 2020 election.

The unanimous ruling from a three-judge panel of the D.C. Circuit Court of Appeals found that although those grand jury fights were properly kept secret at first, special counsel Jack Smith’s office confirmed the existence of the legal battles soon after charging Trump last year in the 2020 election probe.

“The district court’s decision was correct when it issued. But things have changed,” the judges declared. “There is little doubt that the Office of Special Counsel’s disclosure of the privilege disputes substantively and materially changed the state of play in this case and its impact on the merits of Politico’s request for disclosure should be considered.”

It was not immediately clear whether Smith would appeal the decision to the full bench of the D.C. Circuit or to the Supreme Court. If the ruling stands, it is likely to result in a more detailed look at the secretive battles that prosecutors fought in order to secure testimony from figures like former Trump chief of staff Mark Meadows, White House Counsel Pat Cipollone and top aides to former Vice President Mike Pence.

Smith’s team disclosed in court that there had been at least five battles over Trump’s attempt to assert executive privilege to prevent those aides from testifying. In some cases, the outlines of those constitutional clashes could be discerned by a review of the appeals court docket, which reflected “sealed” proceedings that were being considered on an emergency basis. At other times, witnesses were seen by reporters as they arrived at the federal courthouse in Washington, D.C., where the grand jury had been meeting.

“The press’s extensive reporting about the privilege disputes” could also tilt the balance in favor of disclosing some court records about the closed-door battles, the D.C. Circuit said. The three judges on the panel were Trump appointee Justin Walker, Biden appointee Bradley Garcia and Obama appointee Patricia Millett.

POLITICO filed its petition in October 2022, shortly after details of a sealed grand jury fight appeared on the appeals court docket. At the time, it had become apparent that the special counsel was seeking to compel the testimony of two top Pence aides, Marc Short and Greg Jacob. The fight had played out in secret for months before spilling into public view. The New York Times filed a parallel request in the district court, but did not join in the appeal.

Justice Department lawyers urged the appeals court to simply uphold the lower court’s ruling and require POLITICO to file a new petition in that court to unseal any part of the records, but the appeals judges rejected that approach.

“Requiring Politico to file a new petition would needlessly delay an eventual decision on the merits of Politico’s request in light of the materially changed circumstances. Rather than affirm the district court with blinders on as to significant intervening events, the more efficient course of action is to vacate and remand this case to the district court,” the judges wrote.

The initial ruling against the requests from POLITICO and the Times came from the chief judge of the district court in Washington, Beryl Howell, in February 2023 — a few weeks before Judge James Boasberg took over the chief judge’s post.

During her seven-year term as chief judge, Howell sometimes chafed at rulings from the appeals court on grand jury secrecy matters. She suggested that the D.C. Circuit has limited district court judges’ discretion to make aspects of those fights public, while revealing details about such disputes itself when they are on appeal.

Boasberg now has authority for resolving disputes related to grand juries in that court and is expected to handle the unsealing request if Smith’s office doesn’t challenge the ruling the appeals court issued Tuesday. Boasberg has previously unsealed a batch of filings related to Pence’s appearance before the grand jury, and Trump’s attempt to assert executive privilege to block his testimony.

A spokesperson for Smith did not immediately respond to a request for comment on the decision.