Justice Department defends Trump by suggesting Watergate case was 'wrongly decided'

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The DOJ went to court on behalf of Trump to try to block the House from getting key grand jury materials.

Attorney General William Barr's Justice Department continued its run of behaving like Donald Trump's personal attorneys this week, telling a judge that some remaining portions of the Mueller report and underlying grand jury materials shouldn't be given to Congress and citing the impeachment inquiry into Richard Nixon to support their case.

Justice lawyers argued that an impeachment proceeding wasn't a good enough reason for Congress to see the documents. They also suggested that if Watergate had happened today, they may have prevented grand jury materials in that case from being released as well.

It was such a startling take that the judge, Beryl A. Howell of the District Court of the District of Columbia, was left nearly speechless, responding only, "Wow, OK."

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The judge then characterized the DOJ's stance as an "extraordinary position," as department lawyers were effectively arguing that a key Watergate case was wrongly decided.

During Nixon's impeachment inquiry in 1974, former Chief Judge John Sirica ruled that grand jury materials, which were typically secret, would be released to the House of Representatives.

The 1974 decision rested on the idea that grand jury material can be released, in a limited fashion, during other judicial proceedings such as police disciplinary actions. The court then reasoned that an impeachment inquiry is a type of judicial proceeding and therefore was an exception to the general rule that grand jury materials must be kept secret.

The DOJ on Tuesday questioned that 1974 decision. After the judge asked the DOJ attorney if that ruling had been "wrongly decided," the DOJ lawyer simply replied, "If that case came today, a different result would be obtained."

In other words, the DOJ is now insisting that, during Watergate, Congress shouldn't have had access to the materials that underpinned that impeachment inquiry, which later led Nixon to later resign.

Howell didn't seem too happy with the DOJ at other points during the hearing. She reminded them that the DOJ policy that a sitting president can't be indicted is just that — a policy — and has never been tested in court.

The judge also pointed out that, although Trump and his allies have complained about the length of the special counsel's investigation nearly two-year long probe, it was in fact one of the shortest special counsel inquiries ever.

The House Judiciary Committee is requesting the Mueller grand jury material for its wider impeachment inquiry into Trump. The inquiry also centers around several recent events, including a July 25 phone call between Trump and Ukrainian President Volodymyr Zelensky, during which Trump pressed the leader to investigate his 2020 election rival, former Vice President Joe Biden.

Trump, for his part, has repeatedly insisted the call and his subsequent public requests that both Ukraine and China investigate Biden, were above board.

Published with permission of The American Independent Foundation.