The White House efforts to obstruct Congress’ impeachment investigation reached new and dramatic heights both on the Hill and in federal court on Tuesday. In a story that garnered widespread attention, the State Department in the morning blocked a critical witness in Congress’ impeachment inquiry from testifying about President Donald Trump’s efforts to pressure Ukraine to investigate his political rivals and potentially tie critical military aid to those investigations.
Meanwhile, in a less-noticed federal court hearing later in the day, the Department of Justice sought to block the release of the remaining redacted materials of the Mueller report and underlying evidence from Congress, arguing that if Watergate happened today, it would be able to prevent the release of grand jury evidence to Congress and the public.
To keep the evidence from Congress, the Justice Department is seeking to overturn a critical Nixon-era case that allowed the Watergate grand jury to turn over evidence to congressional investigators as part of an impeachment inquiry. The government’s “extraordinary position” made Chief Judge Beryl A. Howell of the District Court for the District of Columbia say, “Wow.”
The exasperated moment came as part of a hearing on the House Judiciary Committee’s request for Howell to issue an order commanding the DOJ to turn over the remaining redacted portions of the Mueller report along with critical underlying evidence.
The precedent in question rests on the 1974 case Haldeman v. Sirica.
In March 1974, shortly after Congress initiated its impeachment inquiry of President Richard Nixon, then-Chief Judge John Sirica, ordered materials from the Watergate grand jury turned over to Congress in what would come to be known as the “Watergate road map” for impeachment. Defendants accused of and eventually convicted for trying to cover up Watergate argued that Rule 6(E) of the federal code governing grand juries, which lays out limited exceptions that allow the disclosure of grand jury materials, prevented the release. Sirica ruled that an impeachment, as a judicial proceeding, qualified as one of those exceptions and thus the materials had to be released to Congress.
“It seems incredible that grand jury matters should lawfully be available to disbarment committees and police disciplinary investigations and yet be unavailable to the House of Representatives in a proceeding of so great import as an impeachment investigation,” Sirica noted in his ruling. The Court of Appeals for the District of Columbia Circuit at the time refused to block Sirica’s ruling. Just this year, in a separate case called McKeever v. Barr, the D.C. Circuit Court upheld Haldeman v. Sirica, saying that it read the case “as fitting within the Rule 6 exception for ‘judicial proceedings.’ ”
So the case law appears settled. But Attorney General William Barr’s Justice Department is still seeking to prevent the release of that material to Congress, citing the 6(E) exception and newly arguing the old position of the Watergate criminals: that impeachment is not a judicial proceeding.
Ultimately, the DOJ’s position would place the president essentially above the law: The DOJ has held that the president can’t be indicted, and if Congress can’t access evidence of presidential malfeasance as part of an impeachment inquiry, then there would virtually be no legal mechanism for holding him to account.
Howell wondered repeatedly why the government had taken this position in contradiction to its stance in every past judicial and presidential impeachment.
“I am curious about why I am here and why you all are here in front of me,” Howell said.
The DOJ’s position also implies that the Watergate impeachment should not have happened, or at the very least that Congress should not have had access to the critical grand jury evidence that provided it with the “road map” to conduct that impeachment.
After lengthy and critical questioning of both sides, Howell finally got down to the nub of the issue. She asked DOJ attorney Elizabeth Shapiro if the government believes Sirica’s ruling to release the Watergate evidence was “wrongly decided.”
“If that case came today a different result would be obtained,” Shapiro responded. “If that same situation would be presented today, he would not be able to do the same thing.”*
“Wow, OK,” Howell responded in apparent astonishment. “As I said, the department is taking extraordinary positions in this case.”
Crucially, the judge later noted that the DOJ regularly shares grand jury information with foreign governments as part of its own information-sharing requests in federal probes—a practice known as mutual legal assistance treaty, or MLAT, agreements—and that special counsel Robert Mueller had made more than a dozen such MLAT requests in this case. She wondered if grand jury material being withheld from Congress had already been shared with a foreign government as part of its MLAT requests. Shapiro did not have a response. Howell gave her until Friday to clarify the issue. She then further wondered why the Department of Justice was “resisting giving to the U.S Congress [information that might have] already been shared with foreign government officials.”
“I think it would be interesting to know in this context,” Howell said.
Correction, Oct. 16, 2019: This article originally misquoted Shapiro as saying “we would not be able to do the same thing.” She said “he” would not be able to do the same thing, referring to Sirica.
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