Fans debate which song in Lin-Manuel Miranda’s “Hamilton” is its top showstopper, but I’ve always been partial to “The Room Where It Happens,” which centers on a most unsexy event: the Compromise of 1790.
Yes, the song — fusing vaudeville, jazz and hip-hop — is undeniably catchy. But what makes it indelible is how, through Aaron Burr’s unfulfilled ambition, it reveals the human longing to be at the center of the action, especially when the action is as pivotal as the center is exclusive.
And right now, in Washington, there is no room more pivotal than Courtroom 22A of the E. Barrett Prettyman Courthouse. That’s where Beryl Howell, the chief judge of the U.S. District Court for the District of Columbia, presides — and under the rules governing that court, Howell decides any motion or application dealing “with a grand jury subpoena or other matter occurring before a grand jury.” What’s more, every aspect of those proceedings is secret: All briefs and orders are sealed and all hearings, save for a rare and categorical exception, are closed. And although Howell has the option to make briefs, orders and transcripts of hearings public, in part or full, she must first find that “continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury.”
Yet for all of the opacity surrounding grand jury proceedings, public reporting suggests Howell’s grand jury-related docket is not a collection of average, anonymous subpoena disputes. Rather, Howell has had to consider disputes over issues from witnesses’ invocation of the Fifth Amendment to the application of the presidential communications privilege, all of which directly impact the Justice Department’s marquee investigations: the Jan. 6 investigation (especially regarding the fake elector scheme and Donald Trump’s own orchestration of efforts to overturn the election) and the Trump classified records investigation. Indeed, despite the public focus on U.S District Judge Aileen Cannon, who is handling litigation about the Mar-a-Lago search warrant, Howell herself has clarified that two key grand jury subpoenas in the records investigation were issued from D.C.
Consider the following disputes, all of which seem to have arrived at Howell’s desk:
On Oct. 6, Greg Jacob, the top White House lawyer to then-Vice President Mike Pence, testified for a second time before the grand jury investigating the Jan. 6 attack and related efforts to overturn the election. That testimony, CNN reported, came only after Trump lost court battles related to Jacob and Pence’s former chief of staff, Marc Short, “before the chief judge of the trial-level U.S. District Court in Washington, DC” — i.e., Howell — in September.
One week later, on Oct. 13, Short also returned to testify for a second time before that grand jury. According to The Washington Post, Howell ruled, through a sealed opinion, that Short likely held information important to the DOJ’s criminal investigation of the Jan. 6 attack that “was not available from other sources.” And although Trump appealed that ruling, a federal appeals court “refused to postpone Short’s appearance” while his appeal proceeded, “signaling that attempts by Trump to invoke executive privilege to preserve the confidentiality of presidential decision-making were not likely to prevail.”
That same day, former Trump defense official Kash Patel, who Trump designated as his liaison with the National Archives in connection with his presidential records in June of this year, appeared before a separate D.C. grand jury, where he “repeatedly invoked” his Fifth Amendment right against self-incrimination. That grand jury is said to be assessing whether Trump “mishandled classified documents and obstructed justice when he refused to return the records to the government.” Over his lawyers’ objections, the DOJ has since asked Howell to force Patel to answer its questions, raising questions as to whether he will be granted immunity in exchange for his testimony.
And in the months since the Mar-a-Lago search, the DOJ has made clear its belief that Trump continues to retain government records. As CNN has reported, “[a]t least some of the battle to secure their return has been playing out behind the scenes in a court proceeding that is under seal,” with sources saying one possible outcome would be asking Howell to order the Trump team to work with the DOJ “to arrange for another search.” In addition to these details, on Wednesday, two media organizations — Politico and The New York Times — made a bid for more information. Each moved to unseal Howell’s Sept. 28, 2022, order, which is thought to concern the grand jury subpoenas to Jacob and Short and the scope of their testimony, as well as all related papers filed with her. Howell has scheduled a briefing on those motions through the end of next month. Therefore, even if she unseals the order and/or the related briefs, it will be a while before we understand precisely why Short and/or Jacob were ordered to testify a second time–and what the implications of her ruling have been or will be for other senior Trump White House aides. But in the meantime, Howell’s grand jury docket shows no signs of slowing. Earlier this week, CNN reported that the DOJ is in the middle of “secret court proceedings” to compel additional grand jury testimony from “the top two lawyers from Donald Trump’s White House” — then-White House counsel Pat Cipollone and his deputy Pat Philbin — and “break through the privilege firewall Trump has used to avoid scrutiny of his actions on January 6, 2021.” Neither MSNBC nor NBC News has independently verified the report. On Thursday morning, Trump lawyers Jim Trusty, Evan Corcoran and Lindsey Halligan — all of whom are known to represent Trump in the records investigation — made their “first appearance in a D.C. federal courthouse,” where they were spotted by NBC News and CNN outside Howell’s courtroom. CNN also identified several Justice Department lawyers among the participants, calling the sealed hearing “the latest sign of prosecutors attempting to move their investigation forward into the handling of documents from the Trump presidency after he left office.” Indeed, on Thursday night, CNN reported that the hearing “related at least in part to the Justice Department’s ongoing demands to make sure all documents marked classified have been returned to the federal government.” I can’t tell you how these investigations end, much less what Thursday’s sealed hearing was about. But I know this: No matter the outcome of the midterm elections, the real room where it happens in D.C. likely will remain not in the Capitol nor the White House but in an overlooked, shabbier courthouse down — what else? — Constitution Avenue. Watch this space.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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