A US Department of Justice seal is displayed on a podium during a news conference on Dec. 11, 2012 in the Brooklyn borough of New York City.
Photo by Ramin Talaie/Getty

Trump’s Justice Department rejects Watergate-era precedent

During Robert Mueller’s investigation into the Russia scandal, there was a federal grand jury collecting information, hearing testimony, and issuing subpoenas relevant to the probe. As Congress pursues impeachment proceedings against Donald Trump, lawmakers now want access to that information, and because the Trump administration has nothing to hide, the White House is eager to provide those materials in the name of transparency.

No, I’m just kidding. The Trump administration is actually fighting tooth and nail to block the grand jury materials from reaching Capitol Hill.

Lawyers for House Democrats on Tuesday urged a federal judge to release grand jury testimony from former special counsel Robert Mueller’s investigation as Congress conducts an impeachment inquiry into President Donald Trump.

Douglas Letter, an attorney for the Judiciary Committee, said the materials are needed to investigate what Trump knew about Russia’s interference in the 2016 presidential election. The committee is seeking access to grand jury witness transcripts that could demonstrate obstruction of justice, among other things.

Attorneys for the Department of Justice, however, told Chief U.S. District Judge Beryl Howell that the House Judiciary Committee has not gone through the correct legal process necessary to obtain the secret material, which was redacted in the version of Mueller’s report given to Congress and released to the public.

Because if there’s one thing we know about Trump administration lawyers, it’s their unyielding fealty toward correct legal processes.

In terms of the underlying legal dispute, grand jury transcripts are kept secret, though they can be shared as part of “judicial proceedings.” The ongoing case is testing whether an impeachment process counts as a judicial proceeding, and whether the U.S. House’s current impeachment inquiry is legitimate.

Judge Beryl Howell hasn’t yet ruled, though she seemed skeptical yesterday of the Republican arguments. But as Rachel noted on the show last night, of particular interest was Trump’s Justice Department arguing against Watergate-era precedent.

During Richard Nixon’s scandal, a federal judge ruled that the impeachment process is, in fact, a judicial proceeding and ordered the Justice Department to turn over Watergate grand jury materials to Congress. The result became known as the “Watergate roadmap.”

So, problem solved, right? All officials have to do now is follow the existing precedent? If only it were that easy. Trump’s Justice Department, led by Attorney General Bill Barr, suggested yesterday that the Nixon dispute was resolved incorrectly.

Howell asked the Department of Justice if they disagreed with that [1974] ruling. [Elizabeth Shapiro, an attorney in the DOJ’s civil division] said that the department’s position has evolved since the 1970s.

“The answer would be that if that same case came today, a different result would be obtained,” Shapiro said. That briefly left Judge Howell in silence.

“Wow, OK,” Howell said. “As I said, the department is taking extraordinary positions in this case.”

I’m not a lawyer, but I think it’s fair to say it’s a problem when a federal judge hears your argument and responds, “Wow.”

Consider the implications of the Justice Department’s pitch: if Watergate grand jury materials should’ve been hidden from Congress, then lawmakers would never have had the “Watergate road map,” articles of impeachment wouldn’t have been drawn, and Nixon might not have been forced to resign in disgrace.

As Jess Dweck joked yesterday, “You know your presidency is going well when you’re at the ‘Watergate was fine actually’ stage.