Lawyers for House Democrats urged a judge Tuesday to release secret grand jury testimony from special counsel Robert Mueller’s investigation as Congress conducts an impeachment inquiry into President Donald Trump.
The Justice Department is opposing the request, and Chief U.S. District Judge Beryl Howell did not immediately rule after hearing arguments from both sides.
The arguments tie together the two most consequential investigations to shadow the Trump administration — a criminal investigation by Mueller into whether the Trump campaign coordinated with Russia to influence the 2016 election , and a new House inquiry into whether the president abused his office by pressing his Ukrainian counterpart for an investigation into Democratic political rival Joe Biden.
The outcome may turn on whether the judge is persuaded that the House is conducting an official impeachment inquiry, even without a formal vote by the chamber, and whether the inquiry counts under the law as a “judicial proceeding.” That distinction matters because while grand jury testimony is ordinarily secret, one exception authorizes a judge to disclose it in connection with a judicial proceeding.
Republicans argue that impeachment is not underway until a formal House vote. Democrats say no vote is necessary. Douglas Letter, a lawyer for the Democratic-led House Judiciary Committee, contended Tuesday that a formal impeachment inquiry was underway for the simple fact that House Speaker Nancy Pelosi says it is.
“We have said it in our briefs and I am saying it to you now,” Letter said. “The House under the Constitution sets its own rules and the House has sole power over impeachment.”
The Justice Department has argued that judicial proceedings take place not in Congress but in court before a judge or magistrate. A Trump administration lawyer argued Tuesday that Democrats have had a “shifting rationale” in arguing why they need the documents, especially because the government had already turned over material from the investigation.
“We feel that there has been really no showing of particularized need,” said Justice Department lawyer Elizabeth Shapiro.
Letter said the materials are needed for the impeachment inquiry to further investigate what Trump knew or said about Russia’s interference in the 2016 presidential election. He said the information already disclosed by the Justice Department, including limited summaries of FBI witness interviews, is woefully insufficient. He noted that the interview summary of one of the most crucial witnesses, former White House counsel Don McGahn, had not yet been disclosed.
“This is not a situation of us getting all sorts of materials,” Letter said. “We’re getting almost nothing.”
It was not clear when Howell might rule, though she repeatedly appeared skeptical of the Justice Department’s reasoning for not disclosing the material. She said she was concerned that withholding the documents, coupled with the Justice Department’s adherence to its policy that sitting presidents cannot be indicted, could result in the public never knowing what investigators found.
The judge ordered Shapiro to disclose by Friday whether the Mueller team disclosed grand jury information when it requested assistance from foreign countries during its investigation, and if so, how often that occurred. She said she was trying to establish whether the Justice Department was refusing to give Congress information it had already disclosed to other nations.