If Watergate happened today, the Justice Department argued in court Tuesday, the grand jury report that contributed greatly to President Richard Nixon’s resignation would not be released to Congress.
“Wow, OK,” replied Chief Judge Beryl Howell, of the D.C. District Court, according to the accounts of multiple reporters who were in the courtroom. She called the department’s position “extraordinary.”
Tuesday’s hearing came ten weeks after the House Judiciary Committee filed a petition for grand jury materials from special counsel Robert Mueller’s investigation.
Such materials typically remain secret, but can be released under certain exceptions. The House has argued that its request falls under such an exception because it is “in connection with a judicial proceeding” — namely impeachment.
In court Wednesday, Howell asked the government whether former Judge John Joseph Sirica, famous for presiding over Watergate trials, was wrong when he allowed a Watergate grand jury report to be released to Congress. The so-called “road map” report is largely credited with contributing to President Richard Nixon’s resignation.
“Was former Judge Sirica wrong?” she asked.
“The answer would be that if that same case came today, a different result would be obtained,” DOJ attorney Elizabeth Shapiro answered.
“I don’t think it’s that extraordinary, your honor,” Shapiro replied.
Howell said separately Tuesday that she owed “deference” to the House when it came to ruling on grand jury materials, Politico reported. However, she acknowledged the Department of Justice’s argument that the House hasn’t formally voted to authorize an impeachment inquiry. Such a vote would “make my life very much easier,” she said, per Politico.
“We are in an impeachment inquiry, an impeachment investigation, a formal impeachment investigation, because the House says it is,” House counsel Doug Letter argued.
Letter also emphasized that the House’s impeachment inquiry was not limited to the President’s activities concerning Ukraine.
The House Judiciary Committee first filed a petition for the grand jury materials in July, and earlier this month, lawyers for the House argued in a filing in the case that they believed the grand jury materials would show that Trump misled investigators.
“Not only could those materials demonstrate the president’s motives for obstructing the special counsel’s investigation, they also could reveal that Trump was aware of his campaign’s contacts with WikiLeaks,” the House lawyers wrote.
Trump attorney Jay Sekulow called that “absurd.”
In a filing last month — filed 11 days before House Speaker Nancy Pelosi announced a impeachment inquiry involving several committees — the Justice Department argued that the House Judiciary Committee’s request for grand jury materials was substantially different than the fight over grand jury materials during Watergate.
“Relying heavily on Haldeman, which permitted the Watergate grand jury to send its ‘Roadmap’ to Congress, the Committee suggests that its ‘need’ for the information is self-evident,” the filing argued, referring to the Watergate case over grand jury materials. “But the circumstances in Haldeman were much different from the current Application.”
The “road map” grand jury report that many historians credit with shifting the tide toward Nixon’s resignation was released under seal to Congress during Watergate. That is, until last year, when a federal judge ordered the report to be released publicly for the first time.
That judge was Beryl Howell.