WASHINGTON -- Justice Department lawyers on Tuesday urged a federal judge to deny a House Judiciary Committee request for grand jury materials from former special counsel Robert Mueller's investigation, arguing that despite legal rulings during the impeachment inquiry into President Richard Nixon, in hindsight, courts in 1974 should not have given Congress materials from the Watergate grand jury.
"Wow, OK," Chief U.S. District Judge Beryl Howell of Washington responded. "As I said, the department is taking extraordinary positions in this case."
Howell called the stance one of several "extreme" arguments presented by White House lawyers in opposing the House request for Mueller grand jury materials, part of a widening impeachment investigation of President Donald Trump.
Over a two-hour hearing, Howell voiced skepticism of Justice Department arguments against granting the House petition, presented in a lawsuit that predated Congress' current impeachment inquiry surrounding the Trump administration's dealings with Ukraine.
Howell, a 2010 appointee of President Barack Obama, pressed veteran Justice Department civil division litigator Elizabeth Shapiro on whether the department now viewed as "wrongly decided" a landmark ruling by then-Chief U.S. District Judge John Sirica that transferred a sealed report and grand jury evidence to House investigators, who prepared Nixon's articles of impeachment.
The grand jury materials, colloquially known as the "Sirica road map," gave Congress evidence in the legal case against Nixon for the burglary, and subsequent cover-up, of the Democratic National Committee headquarters in the Watergate office complex. Nixon resigned as the 37th president before he was formally impeached.
"If that same case were heard today, a different result would obtain," Shapiro said, saying Sirica relied on an "ambiguous" interpretation of law that no longer is valid.
The courtroom debate Tuesday turned on a 1974 federal appeals court decision in Haldeman v. Sirica that upheld that congressional impeachment proceedings are excepted from normal grand-jury secrecy rules.
The decision found that a House impeachment investigation and Senate trial qualify under an exemption that permits prosecutors to share information "preliminary to or in connection with a judicial proceeding."
In the request before Howell, the Judiciary Committee and House General Counsel Douglas Letter are asking her to order the release to Congress of redacted portions of Mueller's 448-page final report on the investigation into Russian interference in the 2016 election, grand jury materials cited by the report and grand jury witness statements subject to the "judicial proceeding" exception.
In court Tuesday, the Justice Department argued that in a decision this year, the appeals court for the District of Columbia Circuit tightened grand jury secrecy requirements in a way that would exclude impeachment inquiries.
The circuit in April in McKeever v. Barr struck down one factor relied on by Sirica, finding that contrary to his 1974 ruling, judges have no "inherent authority" to release such grand jury materials when the public interest outweighs the need for secrecy. However, the circuit court in a footnote agreed with Sirica that congressional impeachment still qualifies as a "judicial proceeding."
Howell did not say how or when she would rule, but she ordered Justice Department attorneys to explain by Friday why prosecutors are not sharing the information under another exception that allows prosecutors to give federal or foreign officials information about "grave hostile acts of a foreign power" or "clandestine intelligence gathering." Howell also ordered the department to disclose how many and which FBI witness interview reports it pledged to give the committee have been turned over so far and how many it plans to turn over, as well as the legal basis for withholding FBI interview reports of witnesses who never went before the grand jury.
A Section on 10/09/2019