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Judge Calls DOJ Arguments to Not Release Mueller Grand-Jury Materials 'Extreme'

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Judge Calls DOJ Arguments to Not Release Mueller Grand-Jury Materials 'Extreme'

2019-10-10 13:22:121 Oct 2018 01:53 AM EST

By Laura Tucker, Staff writer; Image: Beryl A. Howell (Image source: Public domain)

While the big talk right now is of the impeachment inquiry into Donald Trump's phone call with Ukrainian President Volodymyr Zelensky, don't think the House has forgotten about all their other probes with relation to former special counsel Robert Mueller's Russia and obstruction investigations and others. They are still pressing for grand jury materials from Mueller's investigations.

This week Justice Department attorneys asked Chief U.S. District Judge Beryl A. Howell of Washington to deny the House Judiciary Committee's request for the materials. The DOJ recalled the impeachment inquiry into Richard Nixon and said courts should not have given Congress the Watergate grand jury materials. 

"Wow, okay," said Howell. "As I said, the department is taking extraordinary positions in this case."

She referred to the DOJ's request as one of several "extreme" arguments from the Trump administration attorneys while opposing the House Request for the grand jury materials. 

Throughout the hearing the judge continued to be skeptical of the DOJ arguments that are part of a lawsuit that originated before the impeachment inquiry.

Howell questioned DOJ civil division litigator Elizabeth J. Shapiro on whether they now believed that then-chief U.S. District Judge John Sirica "wrongly decided" the Watergate case when he transferred a sealed report and grand-jury evidence to House investigators who were working on articles of impeachment for Nixon. 

Dubbed the "Sirica road map," these materials gave Congress the evidence they needed to hold Nixon accountable for the burglary and cover-up at the Democratic National Committee headquarters in the Watergate office complex. He resigned rather than face a certain impeachment.

"If that same case were heard today, a different result would obtain," said Shapiro, noting that Sirica had relied on an "ambiguous" interpretation of the law that is now invalid. 

This led into a debate in the current case of a federal appeals court decision in 1974 that upheld the ruling that congressional impeachment proceedings are exempt from the grand-jury secrecy rules.

The result was that a House impeachment investigation and Senate trial qualify for an exemption that allows prosecutors to share information "preliminary to or in connection with a judicial proceeding." 

The Judiciary Committee and House General Counsel Douglas N. Letter are asking Howell to release to Congress the redacted portions of Mueller's final report, grand-jury materials that are cited in the report, and grand-jury witness statements that are subject to the "judicial proceeding" exception.

The DOJ further argued that this year the U.S. Court of Appeals for the D.C. Circuit changed the grand-jury secrecy requirement to exclude impeachment inquiries. 

In a previous case in April of McKeever v. Barr, the circuit ruled against a factor Sirica relied on, that judges have no "inherent authority" to release grand-jury materials when the public interest outweighs a need for secrecy, though this is contrary to his 1974 ruling. But in a footnote the circuit agreed with Sirica that a congressional impeachment is still a "judicial proceeding."

There is no indication when Howell will rule in this case, but she asked the DOJ attorneys to explain by Friday why prosecutors aren't sharing the information under another exception that allows prosecutors to hand over information from federal or foreign officials about "grave hostile acts of a foreign power" or "clandestine intelligence gathering." 

Additionally, she ordered the DOJ to disclose which promised FBI witness interview reports, and how many, have already been turned over and how many more it plans to turn over, along with the legal reason for withholding the FBI interview reports for witnesses who never went before the grand jury.

The DOJ filed paperwork following this ruling that said they provided the committee access to FBI reports for 17 of the 33 people that it had requested, though reports of Trump advisers Uttam Dhillon and Rob Porter were redacted to protect conversations with Trump. They plan to make the remaining reports available "so long as they do not adversely impact ongoing investigations and cases" and are redacted "to protect Executive Branch confidentiality interests." 

The reports that haven't been forwarded include those of former White House counsel Don McGahn and two of his deputies; former Trump advisers Steve Bannon, Hope Hicks, and Reince Priebus; and senior DOJ officials that include a former acting attorney general.

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