Federal Judge Rejects Republican Argument Against Impeachment Inquiry

A Federal District Court Judge gave the House of Representatives, and the nation, a big win yesterday.

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A Federal District Court Judge in Washington, D.C. has ruled in favor of the House of Representatives in its effort to obtain a copy of documents related to the Mueller Report and, in the process, rejected an argument that the Trump Administration and prominent Republicans in and out of Congress regarding the ongoing impeachment inquiry:

WASHINGTON —A federal judge handed a victory to House Democrats on Friday when she ruled that they were legally engaged in an impeachment inquiry, a decision that undercut President Trump’s arguments that the investigation is a sham.

The declaration came in a 75-page opinion by Chief Judge Beryl A. Howell of the Federal District Court in Washington. She ruled that the House Judiciary Committee was entitled to view secret grand jury evidence gathered by the special counsel, Robert S. Mueller III.

Typically, Congress has no right to view such evidence. But in 1974, the courts permitted lawmakers to see such materials as they weighed whether to impeach President Richard M. Nixon. The House is now immersed in the same process focused on Mr. Trump, Judge Howell ruled, and that easily outweighs any need to keep the information secret from lawmakers.

And in a rebuke to the Trump administration, she wrote that the White House strategy to stonewall the House had actually strengthened lawmakers’ case. She cited Mr. Trump’s vow to fight “all” congressional subpoenas and an extraordinary directive by his White House counsel, Pat A. Cipollone, that executive branch officials should not provide testimony or documents to impeachment investigators.

“The White House’s stated policy of noncooperation with the impeachment inquiry weighs heavily in favor of disclosure,” Judge Howell wrote. “Congress’s need to access grand jury material relevant to potential impeachable conduct by a president is heightened when the executive branch willfully obstructs channels for accessing other relevant evidence.”

More from The Washington Post:

A federal judge Friday ordered the Justice Department to release certain grand jury materials from former special counsel Robert S. Mueller III’s investigation to the House Judiciary Committee amid its impeachment inquiry. The materials must be disclosed by Wednesday.

In a 75-page opinion, Chief U.S. District Judge Beryl A. Howell of Washington handed a victory to House Democrats, saying the House was legally engaged in a judicial process that exempts Congress from normal grand jury secrecy rules.

Howell dismissed arguments by committee Republicans that the House must first vote to authorize an impeachment inquiry, calling the notion politically “appealing” but legally “fatally flawed.”

“Even in cases of presidential impeachment, a House resolution has never, in fact, been required to begin an impeachment inquiry,” Howell said. In the cases of all three presidents who faced such an action — Andrew Johnson, Richard M. Nixon and Bill Clinton — the House Judiciary Committee had begun investigating or received grand jury materials before a full House vote, the judge said.

“No governing law requires this test — not the Constitution, not House Rules, and not [the grand jury secrecy rule], and so imposing this test would be an impermissible intrusion on the House’s constitutional authority,” Howell wrote.

A Justice Department spokeswoman said, “We are reviewing the decision.”

In a statement, House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said he was “gratified” by the ruling, saying that the grand jury information the Trump administration had sought to withhold “will be critical to our work.”

“The court’s thoughtful ruling recognizes that our impeachment inquiry fully comports with the Constitution and thoroughly rejects the spurious White House claims to the contrary,” Nadler said.

The Judiciary Committee had filed suit in July seeking a court order for the release of redacted portions of Mueller’s 448-pagefinal report on the investigation into Russian interference in the 2016 election, as well as grand jury materials cited or referenced by the report. The ruling ordered those materials released and said the House panel may also come back to court to seek additional material if needed.

Howell said that in determining whether to recommend articles of impeachment, the Judiciary Committee and House are serving like a grand jury, probing allegations of misconduct by President Trump to decide whether they warrant a Senate trial for his removal from office.

“In carrying out the weighty constitutional duty of determining whether impeachment of the President is warranted, Congress need not redo the nearly two years of effort spent on the Special Counsel’s investigation, nor risk being misled by witnesses, who may have provided information to the grand jury and the Special Counsel that varies from what they tell” the House, Howell wrote.

At a hearing this month, Howell called “extreme” the arguments presented by administration lawyers who opposed the House request for Mueller grand jury materials. Justice Department attorneys had said that despite legal rulings during the impeachment inquiry into Nixon, in hindsight, courts in 1974 should not have given Congress materials from the Watergate grand jury.

(…)

In her order, Howell called the Justice Department’s position “most troubling” when combined with its policy that a sitting president cannot be indicted and the Trump administration’s “open stonewalling [of] the House’s efforts to get information by subpoena and by agreement.”

The House, Howell said, is “the only federal body that can act on allegations of presidential misconduct,” yet under the Justice Department’s reasoning, “the Executive Branch would be empowered to wall off any evidence of presidential misconduct from the House by placing that evidence before a grand jury.”

Ordinarily, of course, Grand Jury proceedings are subject to strict secrecy rules. The purpose of these rules are manifold and include the public interest in keep law enforcement investigations secret, protecting the identity of witnesses, protecting the identity and reputations of people who may have been the subject of an investigation but who were never charged, protecting the identity of Grand Jurors who may have been hearing evidence dealing with information that could implicate organized crime, terrorism, drug cartels, and other organizations that could seek to exact revenge, and to protect prosecutorial work product. Under these secrecy rules, a Congressional Committee ordinarily would not be able to get access to the materials that the Judiciary Committee requested.

There are exceptions to this rule, though. In this context, the important exception is one that grew out of the Watergate investigation, specifically the idea that a Congressional impeachment inquiry gave the House of Representatives the right to request Grand Jury materials directly related to an ongoing impeachment investigation. In her ruling, Judge Howell recognized that precedent, which of course originated in the 1970s in the same court on which she currently serves, and ruled that the requested material must be turned over to Congress.

It’s important to note that this material is not related to the investigation that was prompted by the whistleblower complaint regarding the pressure being put on Ukraine for damaging information about the Biden family. Instead, it predates the release of that complaint by several months and deals with another potential ground of impeachment, namely the question of potential collusion between the Trump campaign and Russia and allegations that the President attempted to obstruct justice throughout the course of the Mueller investigation. This request, of course, was made months before Speaker of the House Nancy Pelosi officially stated that the investigations going on in the House were part of an impeachment inquiry, a process that has been led for the past month by the House Intelligence Committee.

The importance of this ruling, assuming it stands, both legally and politically cannot be understated. Legally it means that the Trump Administration has virtually no legal ground left to legitimately bar Congress from having access to documents and witnesses and that its stonewalling strategy has been, again and seemingly definitively, rejected by a Federal Court. It also means that the legal process regarding the various challenges to that stonewalling will likely be expedited since the House now has a legal basis for claiming that it is entitled to the documents and witnesses that it has requested.

Politically, the ruling completely undercuts an argument that President Trump and his Republican sycophants have been making for the past several weeks alleging that the ongoing investigation, which is clearly closing in on the President, is somehow “unfair” or not following established precedent. Specifically, they have essentially alleged that the ongoing investigations are somehow illegitimate because the full House of Representatives has not voted to authorize an impeachment investigation. While it is true that past impeachment inquiries have begun with a vote by the full House, there is nothing in either the Constitution or the Rules of the House of Representatives that requires such a vote. Judge Howell recognizes this in her ruling and makes it clear that the Constitution provides that the House is free to set its own rules and procedures regarding the impeachment process.

The Administration is obviously going to appeal this matter to the Court of Appeals for the D.C. Circuit. Hopefully, that court will expedite the process for briefing and hearing oral arguments so that we can get a clear ruling sooner rather than later. This ruling could also be helpful to the House in the other pending lawsuits regarding document requests that are pending in courts in Washington, D.C. and New York City. This ruling, while not binding precedent, is likely to be persuasive to Federal Judges hearing those cases. That’s why this is a big win for the House of Representatives, and for the country.

Here’s the opinion:

Order On Redacted Mueller M… by Doug Mataconis on Scribd

FILED UNDER: Congress, Donald Trump, Impeachment, Law and the Courts, Politicians, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Michael Reynolds says:

    Want to know how Trump is really seeing the impeachment? He’s looking to unload his lease on the Trump Corruption Hotel in Washington. The cover story is that he’s dumping it to avoid emoluments issues, but of course that’s a lie. He’s dumping it because the Trump name has turned toxic, is only going to get more toxic, and from Mar-a-Lago to Doral to this hang-out of Arab princes and Russian mobsters, the Trump business is going down in flames. It’s a case of sell it now and take a beating, or sell it a year from now for $1.

    Some part of Trump’s delusional brain knows he’s not winning this. Look at the possible outcomes:

    1) He’s impeached and removed.
    2) Impeached but rescued on a straight party-line vote.
    3) Impeached and barely saved by a majority vote for conviction short of 2/3rds.

    Which of those outcomes results in a victory when you start with an approval number of 42% with 50% demanding he be removed right now? He’s either removed by Congress or in a crushing defeat by the voters. Either way the Trump family business is in for a very big fall.

    People say Trump is a fighter, but he is no such thing. He’s just another asshole rich kid who thinks he can buy or bully everyone. That’s not ‘fight’ that’s coasting on privilege. Normally this is the part where Trump would declare bankruptcy and move on to this next grift. But he’s just pulled the biggest con of his life, so where does he go from here? I think if he had an answer to that he’d already be planning his exit. The first sign he’s looking for an exit strategy? Unloading assets that will collapse entirely once he’s out of office. You know, like his Washington money-laundering hotel.

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  2. Gustopher says:

    @Michael Reynolds: You might be jumping to conclusions about this sale.

    He’s offering the lease for $500M. I don’t know if that’s a bargain, or above market. It would not surprise me if this sale ended up being to a Russian oligarch friend of Putin’s.

    Is he selling while the selling is good, or is this going to be a giant bribe in full view? Who can tell….

  3. Michael Reynolds says:

    @Gustopher:
    Oh ye of little faith. I’m confident that Trump will make it both a fire sale and an enormous open-air bribe.

  4. An Interested Party says:

    He’s just another asshole rich kid who thinks he can buy or bully everyone.

    He’s also the prime example of why we need an estate tax and why we need to tax wealth and not just income…

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  5. OzarkHillbilly says:

    @Michael Reynolds:

    People say Trump is a fighter,

    “My lawyer can beat up your lawyer!” is what tuff guys everywhere say.

  6. gVOR08 says:

    @Gustopher: Other reporting , IIRC, reports it as worth something like 250. So Trumpsky is either starting with a high offer or leaving room to launder a really big bribe.

  7. Tyrell says:

    Yet this judge opposes his own impeachment.

  8. Jax says:

    @Tyrell: If you’d like to provide some background on whatever the hell that means, that would be great.

  9. JKB says:

    This ruling, while not binding precedent, is likely to be persuasive to Federal Judges hearing those cases. That’s why this is a big win for the House of Representatives, and for the country.

    You should put this on a plaque in your office because if it stands, then from now on when the White House and the House are held by different parties, impeachment will be underway. If the opposite party Speaker of the House can unilaterally declare impeachment, it will never stop. Remember, the Speaker has a fair shot at becoming an unelected president if they are successful in the gambit.

    Personally, I think the American voters are going to exact a very large bit of flesh for this damage being done to the rule of law and the Constitution. Word is many voters are getting animated and not just in support of Trump, but many in anger at the, shall we say, shenanigans.

  10. @JKB:

    The House is in full compliance with the Constitution, and the only person doing damage to the rule of law and the Constitution is the President of the United States.

  11. @JKB:

    Word is many voters are getting animated

    Where are you getting this “word” from? Faux News Channel, Breitbart, The Gateway Pundit, or Alex Jones?

  12. DrDaveT says:

    @JKB:

    If the opposite party Speaker of the House can unilaterally declare impeachment, it will never stop.

    Exactly! This is why every President since Nixon has been… um…

    Never mind.

  13. JKB says:

    @Doug Mataconis:

    Well, historically, the American voters have been particular in these matters, such as the impeachment “power”. And it is an authority that is really only subject to the adjudication of the voters. We shall see how that turns out in a year. The voters were none to fond of the more traditional use of impeachment 20 years ago.

    As I mentioned, this is animating people on both side, but also a group of voters who seem to be leaning toward handing out beatings at the ballot box. Perhaps, after the semi-secret double hearsay grand jury-like, but with massive leaking hearings, they’ll do it all again on live TV in hopes of convincing the American people. Should make it to the Senate in March or so.

    As I’ve said before, if they don’t bring the American people along, then strictly-by-the-constitution or not, this impeachment will be deemed illegitimate by many of the people who matter, the voters.

  14. Pylon says:

    @JKB: “The voters were none to fond of the more traditional use of impeachment 20 years ago.”

    How was the Clinton impeachment “more traditional”? The only thing non-traditional is this administration’s response to legitimate requests by Congress for documents and attendance.

    And “semi-secret” – you mean like all committee hearings involving classified information? At hearings where the Republicans are over-represented?