“Wow, okay,” Chief U.S. District Judge Beryl A. Howell of Washington responded, sounding unpersuaded. “As I said, the department is taking extraordinary positions in this case.”
Howell called the stance one of several “extreme” arguments presented by Trump administration lawyers in opposing the House request for Mueller grand-jury materials, part of a widening impeachment investigation of President Trump.
Over a two-hour hearing, Howell voiced strong skepticism of Justice Department arguments against granting the House petition, presented in a lawsuit that predated Congress’s 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 J. Shapiro on whether the department now viewed as “wrongly decided” a landmark ruling by then-Chief U.S. District Judge John J. 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 coverup — 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 N. 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 U.S. Court of Appeals for the D.C. 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 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 that 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.
In an evening filing, the Justice Department said it had provided the committee access to FBI reports for 17 of 33 individuals it requested, although those of senior Trump advisers Uttam Dhillon and Rob Porter were mostly redacted to protect conversations with the president. The department said it expects to make the remaining individuals’ reports available “so long as they do not adversely impact ongoing investigations and cases” and are redacted “to protect Executive Branch confidentiality interests.”
The remaining individuals include former White House counsel Donald McGahn and two of his deputies, John Eisenberg and Annie Donaldson; former top Trump advisers Stephen K. Bannon, Hope Hicks and Reince Priebus; and senior Justice Department officials Deputy Assistant Attorney General James Burnham and Dana Boente, a former acting attorney general and now FBI counsel.
The House lawsuit preceded Congress’s impeachment inquiry. It started about two weeks ago, after disclosure of Trump’s efforts to pressure Ukrainian government officials to investigate former vice president Joe Biden, a potential 2020 campaign rival, and Biden’s son Hunter Biden.
That inquiry focuses on an intelligence community whistleblower’s complaint that Trump abused the powers of his office and that the White House allegedly tried to cover up the matter, including the withholding of hundreds of millions of dollars of U.S. military aid from Ukraine.
Letter, in court, said that House Speaker Nancy Pelosi (D-Calif.), in announcing the official impeachment inquiry, did not limit it to Ukraine but included an “umbrella” of pending investigations by six House committees.