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Lady Justice

October 28, 2019

What is happening to the DOJ. And why it is not more talked about.

Bill Girdner

By Bill Girdner

Editor of Courthouse News Service.

What is happening to the DOJ. And why it is not more talked about.

The recent thumping by the chief judge in Washington’s district court is the latest example of how the Department of Justice seems to have been captured by the White House.

In slamming the Justice Department arguments, Judge Beryl Howell and her clerks wrote a 75-page dissertation on the recent and long-ago history of impeachment proceedings.

The context for her ruling was a request by the House Judiciary Committee to see grand jury materials from the Mueller investigation. By the time that investigation wound up, I think many people, certainly including me, were pretty tired of the topic.

But Howell’s summary brings the investigation back to life in a simple, clear and indeed damning outline.

So the Judiciary Committee is asking for underlying grand jury testimony on the president’s knowledge of Russian efforts to disrupt and influence the 2016 campaign. The Justice Departmentunder Attorney General Bill Barr is fighting tooth and nail to resist that disclosure.

The request from the Judiciary Committee is based on exceptions to the general rule, FRCP 6, that says grand jury proceedings are secret. One of the conditions for an exception to that secrecy is that the material is needed for a judicial proceeding.

“DOJ flatly states that no congressional proceeding can constitute a Rule 6(e) ‘judicial proceeding,’” wrote Howell.

“Contrary to DOJ’s position – and as historical practice, the Federalist Papers, the text of the Constitution, and Supreme Court precedent all make clear – impeachment trials are judicial in nature and constitute judicial proceedings,” said Howell.

The Justice Department also argued that the House proceeding was not judicial because the chief justice’s role would “purely administrative, akin to a Parliamentarian.”

“Even if true up to a point, the fact remains the Senate may grant the Chief Justice as significant a role as it sees fit,” Howell answered.

In a lengthy discussion of the Federalist Papers and the debate between James Madison and Alexander Hamilton, the judge’s opinion concludes that, “These Federalist Papers leave no doubt that the power to try impeachments was, in Hamilton’s view, inherently judicial.”

In desperation, the Justice Department also argued the Judiciary Committee had no real need for the transcripts.

“Finally, DOJ claims that ‘[a] finding of ‘particularized need’ is especially inappropriate’ because HJC ‘has not yet exhausted its available discovery tools’ – namely, waiting for DOJ to fulfill its promised production of FBI interview reports and using congressional subpoenas.

“These arguments smack of farce. The reality is that DOJ and the White House have been openly stonewalling the House’s efforts to get information by subpoena and by agreement, and the White House has flatly stated that the Administration will not cooperate with congressional requests for information,” said Howell before ruling in favor of the Judiciary Committee.

So the Justice Department has been reduced to farce in its abject effort to keep information about political skullduggery secret. The Latin words on the seal of the Justice Department, Qui Pro Domina Justitia Sequitur, translate as “Who For Lady Justice Strives.”

Not anymore. It strives to protect the political hide of the man in the Oval Office.

Categories / Law, Op-Ed, Politics

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