Judge questions keeping Mueller grand jury materials from House

During the hearing the judge voiced skepticism about the Justice Department’s reasons for opposing the release of materials

Former special counsel Robert Mueller and Aaron Zebley, far right, deputy prosecutor, arrive to testify before the House Intelligence Committee hearing on their investigation into Russian interference in the 2016 election in Rayburn Building on July 24, 2019. A judge appeared ready Tuesday to give the House Judiciary Committee access to at least some secret grand jury materials from Mueller’s investigation. (Tom Williams/CQ Roll Call)

A federal judge in Washington on Tuesday appeared ready to give the House Judiciary Committee access to at least some of the secret grand jury materials from the Special Counsel Robert S. Mueller III’s investigation.

Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia, throughout a two-hour hearing, voiced skepticism about the Justice Department’s reasons for opposing the release of materials to the committee as part of an impeachment investigation into President Donald Trump.

[Russians will interfere again, maybe others too, Mueller warns]

That was most clear when Justice Department lawyer Elizabeth Shapiro told Howell that a federal judge in 1974 — who sent a sealed grand jury report and evidence to the committee for use in the Watergate impeachment investigation of President Richard Nixon — would rule differently if the issue arose today.

“Wow,” Howell said after a pause. “As I said, the department is taking an extraordinary position in this case.”

The exchange about a decades-old case underscored the rarity of such a separation-of-powers legal battle. There are few previous cases to guide Howell in a decision about whether an impeachment inquiry fits one of the exceptions to rules that keep grand jury information secret.

The Judiciary Committee filed the application in July to get the grand jury materials from Mueller’s investigation into Russian interference in the 2016 presidential election and whether Trump’s actions were obstruction of justice.

Now, the committee argues that the material is still key to an impeachment probe that focuses on Trump’s dealings with Ukraine this year, in part because the Mueller report mentions Trump’s former campaign manager Paul Manafort’s interactions with the country.

The House filed the application to get the grand jury materials in July. This is the first time the Justice Department has opposed the release of grand jury materials to Congress for an impeachment investigation, House General Counsel Douglas Letter said in the courtroom.

But before Howell makes her decision, she has demanded more information and arguments from both sides.

Howell said Tuesday that she thought decisions from 1974 meant that an impeachment trial would qualify as a “judicial proceeding” that allowed the disclosure of grand jury materials.

Shapiro told Howell that in the decades since then, there has been an “evolved understanding” of how to interpret laws and that the outcome would be different today.

And the judge grappled with whether courts must defer to the House about when an official impeachment inquiry has begun.

Howell several times mentioned a brief filed in the case by Rep. Doug Collins of Georgia, the top Republican on the Judiciary Committee, that argued an impeachment inquiry only starts with a floor vote on a resolution to do so.

Letter responded that the House is in a formal impeachment inquiry “because the House says it is. The speaker of the House has said it is.” And lawmakers are spending “one heck of a lot of time” on impeachment, Letter added.

There is also a resolution (H Res 430) that authorized the Judiciary Committee to seek the grand jury material under its Article I powers — which includes impeachment, Letter said.

Howell at one point said a House floor vote authorizing an impeachment inquiry would make it “easier for all of us.”

And at another time the judge asked why the Justice Department did not think they could give the materials to Congress under a different exception to grand jury secrecy related to foreign intelligence and a threat of “grave hostile acts of a foreign power.”

“I am curious about why I’m here, and why you’re here in front of me,” Howell told Shapiro.

Howell on Tuesday also demanded answers from the Justice Department about whether grand jury information from the Mueller report had been disclosed to foreign governments, and whether the department was providing information to the House as part of an agreement to give lawmakers access.

Shapiro said reports about FBI interviews from the Mueller probe were going to lawmakers, with redactions for “confidential communications” between senior White House advisers and Trump.

Letter told the judge Tuesday that the committee has gotten nowhere near what they thought they were going to get. “We’re getting almost nothing,” Letter said.

Among the interviews not yet provided are those with ex-White House Counsel Don McGahn, who provided key information to the special counsel about Trump’s possible obstruction of justice actions and who is also fighting a subpoena to testify before the Judiciary Committee about the Mueller report.

Howell at one point said that the Justice Department had combined two arguments that taken together would mean a lot of information about investigations into a president would be “buried or stuck behind the veil of grand jury secrecy.”

First, the Justice Department determined that a sitting president cannot be charged with a crime — “which is a principle no court has ever said OK to or approved” — and now the department argues that grand jury material can’t be disclosed to the House for an impeachment inquiry.

That would require the House to redo the special counsel’s 22-month investigation. “What is the possible benefit to the public of that?” Howell asked.

At the start of the hearing, Howell noted the number of lawyers from the House General Counsel’s office and Judiciary Committee who were in the courtroom.

“What fun, an outing from the Hill,” Howell said.

Get breaking news alerts and more from Roll Call on your iPhone.