Beryl Howell during her confirmation hearing in July 2010. Photo: Diego M. Radzinschi/NLJ

The judge overseeing grand jury matters in Washington, D.C., peppered the Department of Justice with questions about the agency's changing stance on whether grand jury information can be shared with the House during an impeachment inquiry.

During a two-hour hearing in District Court for the District of Columbia on Tuesday, Chief Judge Beryl Howell pressed DOJ attorneys about their "extraordinary stance" that grand jury materials redacted from special counsel Robert Mueller's report cannot be shared with Congress.

She pointed to past decisions by the U.S. Court of Appeals for the D.C. Circuit that found impeachment does constitute a judicial proceeding, one of the few instances a court can allow the release of grand jury materials, as potentially forcing her hand in ruling for the House in its bid to get the information.

In one significant back-and-forth, Howell asked DOJ whether it believes U.S. District Judge John Sirica of the District of Columbia—who oversaw the grand jury under special prosecutor Leon Jaworski during Watergate—made the right decision in allowing the protected information gathered in his investigation to be handed over to the House during President Richard Nixon's impeachment proceedings.

"If the same situation were presented today, he would not be able to do the same thing," absent changes to the rules on grand jury secrecy, said Elizabeth Shapiro, a deputy director in DOJ's civil division.

Howell took a beat, and then replied, "Wow. OK."

"As I said, the department has taken an extraordinary position this case," the judge continued.

"I don't think so," Shapiro replied. She argued the department's position on sharing the grand jury materials has "evolved" over time.

Howell also question DOJ over whether foreign governments were given access to the grand jury material that the agency is fighting to not share with U.S. lawmakers.

The chief judge pointed to more than a dozen mutual legal assistance treaties that Mueller had with foreign governments in the course of his investigation and asked DOJ if any of those agreements included grand jury materials.

Shapiro replied that she didn't know. Howell gave DOJ until Friday to find out.

"I think it would be interesting to know in this context, how much of this information that this department is resisting turning over to the U.S. Congress has already been disseminated to foreign governments," the judge said.

Howell also brought up another exemption for sharing the redacted information, that grand jury materials can be shared with federal officials in the case of hostile threats or threatening activities by foreign governments or their agents. She asked why the exemption didn't apply in this case, including why members of Congress couldn't be defined as "federal officials."

Shapiro said she believed the exemption only applied to national security officials and meant for the information to be contained within the executive branch. Howell also asked for DOJ to explain that reasoning further in a filing due Friday.

"If it had been disclosed under this provision we could be spared this entire litigation, I think," Howell said.

Howell also took issue with DOJ's stance, as laid out through an Office of Legal Counsel opinion, that a sitting president can't be indicted.

"If DOJ's right that a sitting president can't be indicted, which is a principle that no court has ever said OK to or approved, and if DOJ is also right that an impeachment trial is not a judicial proceeding" and the House can't get access to the grand jury information, Howell said, "doesn't that mean that a lot of the information that may have been collected in the criminal investigation about a sitting president would be buried or stuck behind this veil of grand jury secrecy?"

Shapiro replied that Congress could pass a law changing the grand jury secrecy rules to allow lawmakers to access that kind of information.

Shapiro also argued the House shouldn't have access to the grand jury materials because they haven't shown a "particularized need" for it, beyond wanting access to the information as part of its broad impeachment inquiry.

During her questioning of House general counsel Douglas Letter, Howell also honed in on exactly what information the House needs as part of its impeachment inquiry.

She pointed to one specific grand jury redaction made in Volume 2 of Mueller's report—one of only a handful of such redactions in that volume—and asked whether it was actually necessary for the impeachment efforts.

Letter replied that the House could let that specific redaction be removed from the House's request. But he said that, until the House gets more information, it can't narrow down its requests for information on the underlying grand jury information from Mueller's report.

The judge similarly pressed Letter about the impact of the House impeachment inquiry's focus on allegations President Donald Trump asked Ukrainian President Volodymyr Zelensky to investigate the Biden family and allegations that the White House tried to cover up the call.

"Doesn't that undercut the House Judiciary Committee's request for information from the Mueller investigation, since that was investigating something slightly different?" Howell asked.

Letter said that the Judiciary Committee's other investigations are still ongoing, even as the Ukraine probe intensifies. And he argued that some of the grand jury materials, like those redacted from sections on former Trump campaign head Paul Manafort, could be relevant to the Ukrainian matter.

Letter used one redaction as an example where he said it was likely grand jury testimony. Howell asked if that was speculation, and the House counsel countered it was "informed speculation."

Letter also reiterated that only the House can say whether it's in an impeachment inquiry. Letter said past court rulings state that Howell should give the lawmakers a high level of deference, if not "absolute deference."

And he claimed the information was needed to determine whether any other witnesses made false statements to Congress. Letter cited Trump's claims that former White House counsel Don McGahn lied to Mueller in particular.

"I can't keep up with what the president says, to be honest," Howell replied.

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