WASHINGTON (CN) — The Justice Department urged a federal judge Tuesday not to look to the history books in deciding whether to hand over secret material from special counsel Robert Mueller’s investigation to the House Judiciary Committee, saying the court in 1974 was wrong to release grand jury evidence during Watergate.
“Wow,” Chief U.S. District Judge Beryl Howell said with a stunned face, adding after a brief pause: “The department is taking extraordinary positions in this case.”
Howell had already made clear during Tuesday’s hearing in Washington, D.C., federal court that in considering the House panel’s application filed in July for the release of certain grand jury material from the Mueller investigation, precedent bearing down from the D.C. Circuit and U.S. Supreme Court may bind her to give “enormous deference” to the House.
But the Justice Department countered that the House has failed to demonstrate a particular need for the material hidden behind the veil of grand jury secrecy.
House attorney Douglas Letter said this marks the first time the Justice Department has refused to hand over grand jury materials to Congress during impeachment investigations.
“Frankly, we are all baffled why this practice over many decades is now in reverse,” he said.
Letter struck a blow at the Justice Department’s assertion that the House can rely on other investigative methods to seek out material necessary to determine whether President Donald Trump obstructed justice during Mueller’s investigation.
“That’s just laughable,” he said.
The attorney told the court that the department has failed to provide records of FBI interviews from the special counsel’s investigation and the White House has blocked key witnesses — including former White House counsel Don McGahn — from testifying before Congress.
“The history is with us, by the way,” Letter said, later adding, “Watergate actually supports us.”
President Richard Nixon resigned before the House voted on impeachment. But Letter argued that in the same pattern unfolding in Washington today, House committees were conducting ongoing investigations as the impeachment inquiry in 1974 barreled toward a vote.
U.S. District Judge John Sirica ruled in 1974 to provide the House Judiciary Committee grand jury material to aid its investigation. The decision, out of the same D.C. federal court where Tuesday’s arguments unfolded, was upheld by the D.C. Circuit later that year in a ruling that remains binding.
Howell asked Letter to clarify the scope of today’s House investigations in the wake of a whistleblower complaint over Trump’s July call with Ukrainian President Volodymyr Zelensky that triggered House Speaker Nancy Pelosi, D-Calif., to commence a formal impeachment inquiry.
Letter assured the judge that while the media is focused on the call that Democrats say lays bare efforts by Trump to coerce Ukraine into digging up dirt on his potential 2020 election opponent, former Vice President Joe Biden, the House is continuing to investigate Trump’s ties to Russian interference in the 2016 race.
But Justice Department attorney Elizabeth Shapiro accused the House of proffering “shifting” reasons for access to secret grand jury material.
As to the accusation by Letter that the department has failed to respond to a House request for records of the FBI interviews, known as 302s, from the Mueller investigation, Shapiro sharply disagreed and said officials are working on producing the materials.
But asked by Howell how many 302s the Justice Department has produced, the attorney faltered to provide an answer, saying she did not want to give the wrong number. The judge ordered the department to report back before the end of the day on how many 302s have been produced and why material within them is redacted.
With hundreds of redactions in question, Howell asked Letter how she was expected to rule on whether the House had demonstrated a particularized need for the blacked-out information.
“Do I have to sit here with the Mueller report to say, ‘This is on the table. This is off the table?’” Howell asked.
Letter assured her the House legal team would be happy to work with the Justice Department to develop a more streamlined method to release the material.
But he reminded the judge that anything in materials from the Mueller investigation that reveal Trump as a presidential candidate knew his campaign made contact with WikiLeaks would be “obviously of immense relevance to an impeachment inquiry.”
In a court filing last week, the House said such materials would clearly demonstrate the president’s motives for obstructing the special counsel's investigation.
Howell also questioned why the Justice Department was so cautious about handing over the materials to Congress when information from grand jury proceedings is often shared with foreign countries in mutual legal assistance treaty, known as MLAT, requests for the purpose of gathering information during a criminal investigation.
Mueller, the judge pointed out, made 13 MLAT requests to foreign governments during his 22-month investigation.
“I think it would be interesting to know ... how much of this information the Justice Department is refusing to hand over to the U.S. Congress has already been disseminated to foreign governments,” Howell said.
But the Justice Department could not immediately respond to the judge’s inquiry, with Shapiro noting that such exchanges are often classified.
“I think it would be intriguing to know,” the judge reiterated, ordering the attorney to provide a report by the end of the week with more information on the matter.
Offering Shapiro the opportunity to respond to Letter’s argument that the current litigation marks the first time in history that the Justice Department has refused to hand over grand jury material to Congress in an impeachment investigation, Howell asked: “How does the Justice Department reconcile the different postures and positions it’s taking? Is it just the passage of time?”
“Well, positions evolve,” Shapiro replied.
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