October 8, 2019


DOJ: If Watergate Happened Today, We'd Block Evidence From Congress (JEREMY STAHL, OCT 08, 2019, Slate)

"It seems incredible that grand jury matters should lawfully be available to disbarment committees and police disciplinary investigations and yet be unavailable to the House of Representatives in a proceeding of so great import as an impeachment investigation," Sirica noted in his ruling. The Court of Appeals for the District of Columbia Circuit at the time refused to block Sirica's ruling. Just this year, in a separate case called McKeever v. Barr, the D.C. Circuit Court upheld Haldeman v. Sirica, saying that it read the case "as fitting within the Rule 6 exception for 'judicial proceedings.' "

So the case law appears settled. But Attorney General William Barr's Justice Department is still seeking to prevent the release of that material to Congress, citing the 6(E) exception and newly arguing the old position of the Watergate criminals: that impeachment is not a judicial proceeding.

Ultimately, the DOJ's position would place the president essentially above the law: The DOJ has held that the president can't be indicted, and if Congress can't access evidence of presidential malfeasance as part of an impeachment inquiry, then there would virtually be no legal mechanism for holding him to account.

Howell wondered repeatedly why the government had taken this position in contradiction to its stance in every past judicial and presidential impeachment.

"I am curious about why I am here and why you all are here in front of me," Howell said.

The DOJ's position also implies that the Watergate impeachment should not have happened, or at the very least that Congress should not have had access to the critical grand jury evidence that provided it with the "road map" to conduct that impeachment.

After lengthy and critical questioning of both sides, Howell finally got down to the nub of the issue. She asked DOJ attorney Elizabeth Shapiro if the government believes Sirica's ruling to release the Watergate evidence was "wrongly decided."

"If that case came today a different result would be obtained," Shapiro responded. "If that same situation would be presented today, we would not be able to do the same thing."

"Wow, OK," Howell responded in apparent astonishment.

Posted by at October 8, 2019 6:45 PM