It is fair to say that Beryl Howell went out with a bang.
Judge Howell just resumed her position as an associate judge of the federal district court in Washington, D.C., after a seven-year stint as the court’s chief judge. She spent the last week shredding Donald Trump’s claims of attorney-client privilege and executive privilege, ordering his lawyers and former top subordinates in his administration to provide grand-jury testimony in the special counsel’s criminal investigations into obstruction of Congress on January 6 and illegal retention of government intelligence at Mar-a-Lago. (The latter has become, primarily, an obstruction investigation.)
Contrary to some reporting, Judge Howell, who is 66, is neither retiring nor assuming senior status. (Senior status is, roughly, a semi-retirement mode of reduced caseload, which federal judges may take when their age plus number of years of service sum up to 80 or more. Judges, of course, have life tenure, so they are not required to take senior status; but most ultimately do, clearing the way for presidents — usually of their party — to fill the thus vacated slots with new, younger judges.)
Rather, it is a tradition in many federal courts across the country that the chief judge cedes that prestigious status to the next colleague in line of seniority before that colleague is eligible to assume senior status. Judge Howell thus ceded the title to (now) Chief Judge James Boasberg, who assumed the bench in March 2011, about four months after Howell, following their appointments by President Obama.
Chief judge is an important first-among-equals post, mainly for its administrative responsibilities. In the Washington, D.C., district court, there is an added wrinkle, which is why we’re talking about it. Under the court’s local rules (i.e., rules that apply uniquely to the Washington, D.C., district court), all grand-jury matters are assigned to the chief judge (see Local Rule 6.1).
Howell was, for many years, the top adviser and aide to Senator Patrick Leahy, a fierce Democratic partisan, when he led the Senate Judiciary Committee. Her judicial nomination by Obama came after that, with Leahy’s strong endorsement. She became the district court’s chief judge in 2016.
Obviously, many if not most cases of alleged federal-government wrongdoing are Washington-centric. But prosecutors have the option of conducting investigations in any district where some part of the crimes alleged was committed. The Russiagate investigation, for example, implicated several districts (and one of Paul Manafort’s two criminal cases was tried in Virginia). The Capitol riot was a Washington event, but prosecutors allege (and have proved) that events of significance occurred in several states; and of course, Trump urged officials in several states to reverse their popular elections, in addition to pressuring Congress and Vice President Pence to invalidate electoral votes certified by the governments of those states. As for the Mar-a-Lago documents matter, most of the action happened in Florida (though the grand-jury investigation Trump is suspected of obstructing was headquartered in Washington).
In all of these Trump investigations, however, federal prosecutors — special counsel Robert Mueller, Justice Department attorneys, and now special counsel Jack Smith — have chosen to base their investigations in Washington. That enabled them to use the grand juries impaneled there. It was not an idle choice of forum; the prosecutors factored in that, if there were challenges to their efforts to compel testimony and the production of evidence, Howell would be the deciding judge.
She did not disappoint. Howell reliably ruled in Mueller’s favor when he sought testimony in the teeth of attorney-client privilege claims — and even ruled in favor of House Democrats when they urged, against the objections of the Trump Justice Department, that the committee should be given access to grand-jury material from Mueller’s investigation (DOJ was relying on D.C. Circuit precedent that the controlling rule did not permit disclosure to Congress).
Howell has also ruled in favor of prosecutors, including Smith, who’ve challenged the Trump camp’s efforts to block subpoenas. As we detailed last week (here and here), she directed Trump lawyer M. Evan Corcoran to provide testimony and other key evidence (notes and recordings) to the special counsel’s Mar-a-Lago investigation, concluding it was probable that Trump had carried out a criminal scheme of obstruction, such that the crime-fraud exception to the attorney-client privilege was triggered. Corcoran testified last Friday.
In Smith’s January 6 probe, he is examining whether Trump and others conspired to obstruct Congress’s joint session, in which lawmakers and the vice president were to ratify President Biden’s Electoral College victory (and finally did ratify it late that night, after rioters were cleared from the Capitol). In connection with that investigation, in her last days as chief judge, Howell ordered that a number of Trump administration officials testify, rejecting their executive-privilege claims. Howell’s ruling is sealed because of grand-jury secrecy rules, but it was leaked to ABC News. The New York Times reports that the former officials required to testify include chief of staff Mark Meadows, personnel chief and personal aide John McEntee, personal aide Nick Luna, national-security adviser Robert C. O’Brien, deputy chief of staff and social-media director Dan Scavino, National Intelligence director John Ratcliffe, top adviser and speechwriter Stephen Miller, and Homeland Security acting-secretary Ken Cuccinelli.
Smith is also seeking to compel testimony from Pence. After fighting off the House January 6 committee’s efforts to seek his testimony by arguing that they violated separation of powers because he was a high-ranking executive-branch official, Pence has been trying to fight off the executive-branch special counsel’s effort to seek his testimony by claiming that he was actually a high-ranking legislative-branch official (as I’ve opined, Pence is wrong about that). Trump is also seeking to block Pence’s testimony, on the more fitting ground of executive privilege. That litigation is now before Chief Judge Boasberg.
Undeniably, Trump brings much of his trouble on himself, and he conducts himself so bigger-than-life boorishly that it is easy to think of him as sui generis. But that said, Hillary Clinton was colorably suspected of serious crimes, and the Biden family is colorably suspected of cashing in, to the tune of millions of dollars, on Joe Biden’s political influence (with evidence that Biden is complicit, and strong evidence that Hunter Biden has committed crimes). Yet the Obama-Biden Justice Department never appointed a special counsel for Clinton (Obama’s secretary of state and the presidential candidate he endorsed to try to succeed him); and the Biden Justice Department finally appointed a special counsel to probe Biden’s mishandling of classified information only when its dubious appointment of one for Trump’s similar crime left no political alternative. To this day, Biden’s attorney general has resisted appointing a special counsel to examine the lucrative Biden family influence-peddling business.
Beyond that, the Biden Justice Department went to court to support the then-Democratic-controlled Congress’s arguments against executive privilege for Trump, and, in the same vein, DOJ is not supporting executive-privilege claims by top Trump officials. This can only weaken the privilege for Biden and other presidents in the future. It would not pass the laugh test to claim that this posture is not driven by partisan politics. Regardless of who the president is, the Justice Department has traditionally argued for a robust interpretation of presidential privileges and prerogatives. It is impossible to imagine, for example, a Democratic administration sitting by passively while Congress or a prosecutor tried to subpoena a former vice president and other high-ranking officials from a Democratic administration.
The Trump investigations are a marked contrast from the Hillary Clinton emails scandal. The latter probe involved lawyers who were hands-on complicit in Clinton’s egregious use of a private, homebrew, nonsecure email system for State Department business and her reckless mishandling of classified information. Far from forcing them to testify, the Obama-Biden Justice Department allowed them to dictate what evidence the FBI would be allowed to review. When pressed on this point, officials ludicrously claimed that negotiating with Clinton’s lawyers — rather than issuing subpoenas on pain of contempt for noncompliance — was the most efficient way to peruse the information the bureau needed. That made sense . . . but only because the fix was in: Obama had made clear that he did not want Clinton prosecuted; the FBI began preparing then-director James Comey’s irregular public statement concluding that no prosecution should be brought months before Clinton herself and other critical witnesses were interviewed; and the Justice Department, for all its later caviling about Comey’s usurpation of its charging authority, quickly adopted his bottom line.
Of course, if you’re outraged by the aggressiveness of the Trump investigation, it could fairly be argued that the corruption problem lies in the Justice Department’s kid-gloves approach to Clinton and the Bidens, not in the fact that prosecutors are methodically building cases against Trump. But that only goes so far — to wit, only as far as the January 6 and the Mar-a-Lago documents probes, which appear to involve serious misconduct. The Russiagate “collusion” investigation was a smear, generated by the Clinton campaign to divert attention from her emails scandal and her record (broadly, the Obama record) of mollycoddling Putin’s Russia. The Justice Department’s passivity in the Biden inquiries (what’s called the “Hunter Biden” investigation is now in its fifth year) is embarrassing.
As one would expect, the legacy of this unabashed politicization of law enforcement is a well-grounded perception of a two-tiered justice system. It is the perception that Manhattan District Attorney Alvin Bragg has fortified with his overtly partisan crusade against Trump. As we saw yet again in his there’s-strength-in-victimhood rally in Waco over the weekend, Trump has mastered the art of exploiting it, even when he is in the wrong.