One step closer to the release of Mueller probe grand jury materials to Congress

Let’s make one thing perfectly clear: the position the Trump “Injustice” Department is arguing in the federal courts, that the president cannot be indicted or even investigated for crimes by the Justice Department or the Congress — that the president is absolutely immune from being held accountable at law while president — only applies to a Republican president. If a Democrat was president and had done even one-tenth of the things that Donald Trump has done, he or she would already have been impeached.

Republicans really ought to reconsider the position the Trump “Injustice” Department is taking. If the courts were to agree with this extraordinary position, then a future Democratic president could simply ignore made-for-FOX investigations like Fast & Furious and Benghazi! that Republicans feed on. It’s almost as if Republicans believe that there will never be another Democratic president. Which raises a whole set of other questions about what kind of evil plot for election interference they have planned for 2020, and beyond, but that’s for another day.

On Tuesday, the judge overseeing the grand jury proceedings in Special Counsel Robert Mueller’s investigation heard arguments in a motion by Congress for Rule 6(e) grand jury proceeding documents and testimony in the House impeachment investigation. (In the previous two special counsel investigations into Nixon and Clinton, the Special Counsel and Justice Department moved the court to provide the grand jury materials to Congress). For the first time in our history, the Trump “Injustice” Department argued for obstructing a House impeachment investigation. ‘Wow’: DC Judge Questions DOJ’s ‘Extraordinary’ Stance on Mueller Grand Jury Info:

During a two-hour hearing in District Court for the District of Columbia on Tuesday, Chief Judge Beryl Howell pressed DOJ attorneys about their “extraordinary stance” that grand jury materials redacted from special counsel Robert Mueller’s report cannot be shared with Congress.

She pointed to past decisions by the U.S. Court of Appeals for the D.C. Circuit that found impeachment does constitute a judicial proceeding, one of the few instances a court can allow the release of grand jury materials, as potentially forcing her hand in ruling for the House in its bid to get the information.

In one significant back-and-forth, Howell asked DOJ whether it believes U.S. District Judge John Sirica of the District of Columbia—who oversaw the grand jury under special prosecutor Leon Jaworski during Watergate—made the right decision in allowing the protected information gathered in his investigation to be handed over to the House during President Richard Nixon’s impeachment proceedings.

“If the same situation were presented today, he would not be able to do the same thing,” absent changes to the rules on grand jury secrecy, said Elizabeth Shapiro, a deputy director in DOJ’s civil division.

Howell took a beat, and then replied, “Wow. OK.”

“As I said, the department has taken an extraordinary position this case,” the judge continued.

“I don’t think so,” Shapiro replied. She argued the department’s position on sharing the grand jury materials has “evolved” over time.

Howell also question DOJ over whether foreign governments were given access to the grand jury material that the agency is fighting to not share with U.S. lawmakers.

The chief judge pointed to more than a dozen mutual legal assistance treaties that Mueller had with foreign governments in the course of his investigation and asked DOJ if any of those agreements included grand jury materials.

Shapiro replied that she didn’t know. [Why not?] Howell gave DOJ until Friday to find out.

“I think it would be interesting to know in this context, how much of this information that this department is resisting turning over to the U.S. Congress has already been disseminated to foreign governments,” the judge said.

Howell also brought up another exemption for sharing the redacted information, that grand jury materials can be shared with federal officials in the case of hostile threats or threatening activities by foreign governments or their agents. She asked why the exemption didn’t apply in this case, including why members of Congress couldn’t be defined as “federal officials.”

Shapiro said she believed the exemption only applied to national security officials and meant for the information to be contained within the executive branch. Howell also asked for DOJ to explain that reasoning further in a filing due Friday.

“If it had been disclosed under this provision we could be spared this entire litigation, I think,” Howell said.

Howell also took issue with DOJ’s stance, as laid out through an Office of Legal Counsel opinion, that a sitting president can’t be indicted.

“If DOJ’s right that a sitting president can’t be indicted, which is a principle that no court has ever said OK to or approved, and if DOJ is also right that an impeachment trial is not a judicial proceeding” and the House can’t get access to the grand jury information, Howell said, “doesn’t that mean that a lot of the information that may have been collected in the criminal investigation about a sitting president would be buried or stuck behind this veil of grand jury secrecy?”

Shapiro replied that Congress could pass a law changing the grand jury secrecy rules to allow lawmakers to access that kind of information.

Shapiro also argued the House shouldn’t have access to the grand jury materials because they haven’t shown a “particularized need” for it, beyond wanting access to the information as part of its broad impeachment inquiry.

During her questioning of House general counsel Douglas Letter, Howell also honed in on exactly what information the House needs as part of its impeachment inquiry.

She pointed to one specific grand jury redaction made in Volume 2 of Mueller’s report—one of only a handful of such redactions in that volume—and asked whether it was actually necessary for the impeachment efforts.

Letter replied that the House could let that specific redaction be removed from the House’s request. But he said that, until the House gets more information, it can’t narrow down its requests for information on the underlying grand jury information from Mueller’s report.

The judge similarly pressed Letter about the impact of the House impeachment inquiry’s focus on allegations President Donald Trump asked Ukrainian President Volodymyr Zelensky to investigate the Biden family and allegations that the White House tried to cover up the call.

“Doesn’t that undercut the House Judiciary Committee’s request for information from the Mueller investigation, since that was investigating something slightly different?” Howell asked.

Letter said that the Judiciary Committee’s other investigations are still ongoing, even as the Ukraine probe intensifies. And he argued that some of the grand jury materials, like those redacted from sections on former Trump campaign head Paul Manafort, could be relevant to the Ukrainian matter.

Letter used one redaction as an example where he said it was likely grand jury testimony. Howell asked if that was speculation, and the House counsel countered it was “informed speculation.”

Letter also reiterated that only the House can say whether it’s in an impeachment inquiry. Letter said past court rulings state that Howell should give the lawmakers a high level of deference, if not “absolute deference.”

And he claimed the information was needed to determine whether any other witnesses made false statements to Congress. Letter cited Trump’s claims that former White House counsel Don McGahn lied to Mueller in particular.

“I can’t keep up with what the president says, to be honest,” Howell replied.

POLITICO reports these exchanges with the judge at this hearing indicates Judge signals Dems may get to see Mueller’s secrets:

A federal judge signaled Tuesday that she might give House Democrats access to some of Robert Mueller’s remaining secrets.

During a two-hour hearing, Beryl Howell, chief judge for the U.S. District Court, challenged the Justice Department to explain its “extraordinary position” of trying to block lawmakers from seeing the special counsel’s grand jury materials, which include testimony and evidence that has been kept private since the Mueller probe ended in March. Grand jury material is protected by law, but judges can release information under special circumstances.

If Howell rules in Democrats’ favor, it would represent a major legal victory for them and could help expand Congress’ impeachment inquiry of President Donald Trump. While the probe started earlier this year with a broader focus on Mueller’s findings, the Democrats in recent weeks have homed in on the president’s alleged attempt to pressure Ukraine into investigating former Vice President Joe Biden and his son Hunter.

Howell on Tuesday said that under both Supreme Court and federal appellate court precedent, she must give “enormous deference” to House Democrats and their interest in the grand jury materials because of their impeachment inquiry. She even indicated that the impeachment probe is a precursor for releasing the Mueller materials.

The judge[‘s] comments … offered the House a glimmer of hope that it may get to see several blacked-out words, phrases, sentences, paragraphs and entire pages from the report Mueller released in April summarizing his probe.

During Tuesday’s hearing, the top lawyer for the Democrats told Howell that the House impeachment inquiry still includes issues tied to the Mueller probe and hasn’t just been whittled down to Trump’s efforts to pressure the president of Ukraine into launching investigations of his political opponents.

“I can’t emphasize enough — it’s not just Ukraine,” House counsel Doug Letter said, adding that the Judiciary Committee “could easily” adopt articles of impeachment against Trump that deal with the Mueller-related themes of obstruction of justice and election interference.

One example Letter gave Tuesday was the president’s public statements claiming his former top White House lawyer, Don McGahn, lied to Mueller’s investigators. If the Democrats determine Trump wasn’t telling the truth, it could end up being another impeachment article against him, Letter said.

Elizabeth Shapiro, a deputy director in the DOJ civil division, countered that Democrats should be denied access to the Mueller grand jury materials, arguing that a congressional impeachment proceeding doesn’t meet the criteria to release them. [Wrong!]  And even if the court did rule that a congressional impeachment should free up grand jury material, she noted that the House hasn’t formally declared an impeachment process. Indeed, the House has yet to hold an official vote on the matter.

Under the current rules of the House, the investigative committees have far greater subpoena power than in the past. A formal vote of the entire House for impeachment is not required. The House Judiciary Committee resolution for investigative procedures adopted on September 12 is sufficient.

Republicans are grandstanding, demanding a formal vote of the full House, thinking this will somehow help them win swing districts represented by Democrats. Given the current polling on impeachment, this is delusional.

Democrats argue that the subject of the investigation does not get to set the rules of impeachment inquiry. The Constitution gives this power exclusively to the House. The facts that the Democrats are pursuing are uncontroverted — Trump has already publicly admitted that he has done these things, but argues “So what? I am above the law.” Any Republican not voting to hold an impeachment inquiry is consenting to Trump’s lawlessness, not a good look.

If a formal impeachment vote were held, Republicans would be wise to vote for the impeachment inquiry and then (falsely) assert that they are withholding their judgment until they have seen the evidence. What they are trying to do right now is to make this about procedure, a bright shiny object to distract attention from Trump’s admitted criminality. It is a distraction without substance.

Judge Howell said she agreed that a House vote to authorize impeachment proceedings would “make my life very much easier” in ordering the release of the Mueller materials. But even without that vote, Howell said she still likely was obligated to give the House what it said it needed. For his part, Letter argued that the House has to only announce it is holding an impeachment investigation, and Speaker Nancy Pelosi has put her stamp on the chamber doing exactly that.

“She’s totally on board with this. This is the position of the House,” said Letter, who explained that he speaks with Pelosi regularly and had a conversation about the court hearings with the speaker on Monday night.

Tuesday’s hearing included a number of other illuminating exchanges involving Howell, who oversaw the Mueller grand jury as the top judge of the federal court in Washington. She pressed Shapiro repeatedly to explain whether Mueller’s team had already shared grand jury information with foreign governments, given that it made 13 requests to overseas officials during its probe.

“I’d like to know how much information the department is resisting giving to the U.S. Congress has already been shared with foreign government officials,” Howell asked, pressing the DOJ attorney to return with an answer by Friday.

Howell also asked Letter whether a president could be impeached for lying to the public.

“I believe so, yes, absolutely,” he replied. And she asked whether Trump needed to have committed a crime to be impeached. “No, he does not,” the House lawyer answered.

True dat!

The judge offered several other comments indicative of her attention to the Mueller case and the Trump presidency. She noted that the long-standing DOJ policy that a sitting president can’t be indicted had never been the subject of a direct judicial opinion. And she noted that the 22-month-long Mueller probe — which the president’s allies constantly berated for its length — was actually “among the shortest special counsel investigations ever.

At another point, during an exchange over Trump’s claims about his former aides giving misleading testimony, the judge interjected, “I can’t keep up with what the president says to be honest.”

Central to the House Democrats push for the Mueller materials is the historical precedent that DOJ in all previous impeachment investigations — involving presidents and judges — did not fight Congress over access to grand jury materials.

Howell gave both the Justice Department and House lawyers several deadlines as she proceeds toward a decision, which she noted at one point would just be a “speed bump” on the way to an inevitable challenge to the U.S. Court of Appeals in Washington of any ruling.

Judge Howell should rule quickly on the grand jury materials, to be followed by a dilatory appeal to the D.C. Circuit Court of Appeals by the Trump “Injustice” Department. It is likely then headed to the U.S. Supreme Court. Because this is a procedural matter with clear historical precedents, it should not take long to resolve. The matter is expedited under an impeachment inquiry.