The DOJ’s Latest Effort to Run Out the Clock on Impeachment Should Fail

U.S. Attorney General William Barr on Monday in Chicago.
U.S. Attorney General William Barr on Monday in Chicago. Brendan Smialowski/AFP/Getty Images

On Friday, a federal district judge issued a devastating blow to the Department of Justice’s efforts to bury the remaining redacted elements of the Mueller report, ruling that the House impeachment inquiry is legitimate and ordering the DOJ to turn over to House Judiciary Committee investigators those Mueller materials by Wednesday.

The D.C. District Court’s chief judge, Beryl A. Howell, dismantled the government’s argument in her blistering 75-page opinion. On Monday, though, the DOJ appealed that decision and asked for a stay of the Wednesday deadline. The DOJ insists that it has “strong arguments” on appeal and will be irreversibly harmed if Congress gets the materials it’s seeking. In reality, the department is transparently trying to wait out the clock as it runs further interference for President Donald Trump. In requesting a stay on Monday, the Department of Justice argued that there is little urgency in this matter and that the House of Representatives does not need the entirety of the Mueller report to fulfill its constitutional duty.

Democrats have reportedly been pursuing impeachment on an urgent timeline, with a presidential election looming and an inquiry focused on efforts by the president to allegedly use the powers of his office to cheat in that election. House investigators seek material directly relevant to what the president knew about Russia’s efforts to interfere in the 2016 election and his continued motives for obstructing the investigation of that interference, one of the central looming questions in the ongoing Ukraine matter. Given the issues at stake—decades of precedent allowing Congress to complete a thorough investigation of the president, in addition to the ongoing threats to the next election—it is incumbent on the U.S. Court of Appeals for the D.C. Circuit seek to resolve this case as quickly as possible.

Three key portions of Howell’s opinion unpacked the DOJ’s dissembling for the D.C. Circuit’s benefit, however.

The DOJ is arguing against its (very recent) past positions.

As Howell noted, the central legal question in this case—whether or not an impeachment trial constitutes a “judicial proceeding” for the purposes of exceptions to grand jury secrecy—was decided just last year by the D.C. Circuit, an opinion by which she is now bound. In that case, McKeever v. Barr, the D.C. Circuit Court cited the court’s previous decision in the Nixon-era case, Haldeman v. Sirica, “as fitting within the Rule 6 exception for ‘judicial proceedings.’ ” Haldeman allowed the Watergate grand jury to transmit to House investigators its “road map” for impeachment under the 6(e) “judicial proceeding” exception to grand jury secrecy. (Though, the DOJ astonishingly argued that if the Watergate situation happened again today, a judge would not be able to hand over the same materials to Congress that Judge John Sirica did in the Haldeman case.) As Howell further noted, in the Haldeman case and in every other prior recent instance of impeachment—judicial and presidential—the DOJ supported disclosing grand jury materials to Congress.

The kicker, though, is that in McKeever, the Department of Justice argued the opposite of what it is arguing now. Its new approach runs counter to the legal principle of estoppel, which bars litigants from taking contradictory positions in court in order to maximize their odds of success.

From Howell’s opinion:

When queried about reconciling DOJ’s current position with its historical support of providing grand jury materials to Congress for use in impeachment inquiries, DOJ responded that its position has “evolved.” [..] No matter how glibly presented, however, an “evolved” legal position may be estopped. […]

Howell closes this critical passage by noting that “[m]ost importantly, in McKeever itself DOJ successfully argued—just last year—that the D.C. Circuit has” held that Haldeman stood “for the proposition that an impeachment proceeding may qualify as a ‘judicial proceeding’ for purposes of Rule 6(e).”

“DOJ’s position has had a speedy evolution indeed,” Howell concludes, wryly.

The DOJ rests its case on the false claim that it is cooperating with the House inquiry.

While Howell reserved her greatest bemusement for DOJ’s “glib” efforts to offer a “speedy evolution” on the judicial proceeding question, this was not the harshest language in her opinion. Indeed, Howell marveled at the government’s argument that the House Judiciary Committee has no “particularized need” for the grand jury information—as must be demonstrated under the 6(e) exception—because the administration is cooperating in other areas, such as on the sharing of FBI interview forms, known as 302s. If you’ve followed the news recently, you might have noticed that the White House has taken the very public position of not cooperating with the investigation, a fact that inspired Howell to describe the DOJ’s position as “farce.” She specifically notes that DOJ’s claim that it doesn’t need to hand over grand jury information because it reached an agreement to share the relevant 302s is belied by the fact that the DOJ has only turned over a small portion of the promised material, and even threatened to pull out of the agreement. From the opinion:

These arguments smack of farce. The reality is that DOJ and the White House have been openly stonewalling the House’s efforts to get information by subpoena and by agreement, and the White House has flatly stated that the Administration will not cooperate with congressional requests for information. […]

The White House’s stated policy of non-cooperation with the impeachment inquiry weighs heavily in favor of disclosure. Congress’s need to access grand jury material relevant to potential impeachable conduct by a President is heightened when the Executive Branch willfully obstructs channels for accessing other relevant evidence.   

The DOJ’s argument would place Trump above the law.

As I noted after attending arguments in the case earlier this month, the DOJ’s position would place the president essentially above the law. Howell noted that this stance was the “most troubling” position the department has taken in this case:

Most troubling, DOJ’s proposed reading of “judicial proceeding” raises constitutional concerns. DOJ policy is that a sitting President cannot be indicted[,] which policy prompted the Special Counsel to abstain from “mak[ing] a traditional prosecutorial judgment” or otherwise “draw[ing] ultimate conclusions about the President’s conduct.” […] This leaves the House as the only federal body that can act on allegations of presidential misconduct. Yet, under DOJ’s reading of Rule 6(e), the Executive Branch would be empowered to wall off any evidence of presidential misconduct from the House by placing that evidence before a grand jury. 

To close this section, Howell cited the D.C. Circuit’s opinion earlier this month in the Trump financial records case, Trump v. Mazars. As a majority of the three-member panel of the D.C. Circuit—the same court that will now decide this case—noted just a little more than two weeks ago, “It is simply not fathomable that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct … ”

As Howell’s opinion makes clear, it’s hard to fathom a legal situation with more urgency than a presidential impeachment. Hopefully, the D.C. Circuit Court sees it that way as well.