DOJ argues courts would decide famed Nixon Watergate case differently today
Posted October 8, 2019 9:36 p.m. EDT
CNN — The Trump administration argued Tuesday that courts would make a different decision today than 45 years ago when a federal judge gave Congress a secret grand jury report on evidence in the Watergate scandal -- prompting the current top judge in Washington's federal court to exclaim, "Wow."
The exchange may be one of the most important moments so far in court since House Speaker Nancy Pelosi announced the impeachment inquiry into President Donald Trump two weeks ago.
The issue of the judicial branch's powers and history came to a head near the end of a ferocious, more than two-hour hearing before Chief Judge Beryl Howell of the US District Court in Washington on Tuesday.
Democrats say they do not need to pass a resolution to begin a formal impeachment inquiry and want a federal judge to force the administration to turn over information it's holding back. The White House and congressional Republicans have argued that explicit House approval is necessary -- and have rested on the lack of a vote as a way to stop House proceedings, including blocking European Union Ambassador Gordon Sondland from testifying Tuesday to a House panel.
An 'extraordinary' exchange
Howell raised the question of a key court decision during Watergate that allowed Congress to gain access to a secret grand jury report on President Richard Nixon, now known as the "Watergate road map."
Howell cut off the Justice Department lawyer who was arguing the administration could withhold grand jury secrets from Congress.
"Was former Judge Sirica wrong" for releasing the Watergate road map to the House, Howell asked twice, raising her voice.
She was referring to Judge John Sirica of the same court, who became one of Nixon's greatest foils during Watergate. Sirica had ruled to give the secret grand jury report to Congress as it investigated Nixon, and the DC Circuit Court of Appeals upheld his decision.
Justice Department lawyer Elizabeth Shapiro didn't give a direct answer. Instead, she said the Nixon-era judge wasn't wrong at the time of Watergate but that the Watergate grand jury ruling by the court may have been decided differently if it were considered today.
"Wow," Howell said. "The department is taking an extraordinary position in this case."
Previously, the Justice Department had written somewhat dismissively to Howell about that significant Sirica decision. His opinion in the case "stands for nothing more than what it held," department attorneys wrote to her last month. The department has also argued that the circumstances during Watergate, because they involved an active grand jury wishing to share the evidence it found, were different from the House's request, according to the previous court filing and Shapiro's arguments Tuesday.
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The Watergate road map became public about a year ago following a decision from Howell to release it. Around that time, several fights brewed in the federal courts over what judges can release to Congress or the public regarding grand jury proceedings, and they continue to this day.
Howell is currently weighing whether the House should have access to grand jury transcripts from special counsel Robert Mueller's investigation and details in the Mueller report, which House lawyers say are needed for their impeachment inquiry into whether the President has obstructed justice or encouraged foreign interference in elections.
Judge's legacy in Watergate
The Watergate road map amounted to a collection of evidence compiled by prosecutors at the time and a federal grand jury. The grand jury wrote in the document that it had found "circumstantial evidence and coincidences" that suggested Nixon was aware of payouts and covert operations to disrupt the Democrats' campaign efforts. Sirica gave the House Judiciary Committee the road map in early 1974, and Nixon resigned under threat of impeachment five months later.
Sirica's separate ruling during Watergate to force the White House to hand over its secret tapes to prosecutors made the late judge one of the most significant forces leading up to Nixon's resignation. The Supreme Court upheld that decision unanimously, undercutting the President's executive privilege.
Sirica is a figure who still looms heavy over the court Howell now leads. The Washington courthouse keeps on display in its central lobby a framed copy of Time magazine with Sirica on the cover. He was 1974's Man of the Year.