Hot Air

Federal judge: Secret Mueller grand jury material must be shared with House Dems — because their impeachment inquiry is legally valid

Expecting some solid rage-tweeting from POTUS over this later today, especially since the judge is an Obama appointee.

One of the core Republican critiques of the impeachment inquiry is that it hasn’t been authorized via a floor vote, as has traditionally happened in the House when an impeachment investigation begins. That’s not just a political complaint either. It was the very first legal claim made in the letter sent to Pelosi a few weeks ago by White House counsel Pat Cipollone:

That issue was before a federal district court this week in connection with Democrats’ demand for access to the redacted grand jury material in the Mueller report. The law says that grand jury material must be provided when it’s relevant to a “judicial proceeding.” But that’s Cipolline’s, and the DOJ’s, point — there’s no “judicial proceeding” in the House because they’ve never gotten around to formally initiating one. That forced Judge Beryl Howell to take up the question of whether an impeachment inquiry that hasn’t officially commenced with a House vote can be said to exist.

Answer: Yes. The key section runs from pages 49 to 62 of the opinion. Howell notes that the House has in fact impeached *judges* before without formally opening an impeachment inquiry with a floor vote, but the thrust of her argument is simply deference to the House on a matter where the Constitution gives it exclusive power. That deference isn’t unlimited — the court can and will scrutinize whether the House, in demanding grand jury material, really does want that material for an investigation whose “primary purpose” is judicial, i.e. impeachment. But if the House clears that bar, which it did in this case, the court isn’t going to tell it how to run its shop by voting on an official resolution to open an impeachment probe. Especially not based on something as gassy as tradition:

Howell emphasizes deference to the legislature again later:

The ruling can be and will be appealed, of course, but I’m skeptical that a 5-4 conservative majority led by John Roberts will start dictating procedural steps to Pelosi on a matter as glaringly political as impeachment. The other four conservatives might be willing to, but there are two ultra-high-profile examples in Roberts’s past of him allegedly changing his vote to side with the liberals in cases that had drawn intense political interest. Roberts reportedly is anxious that the Court not come to be seen as just another partisan operation; the Trump era, with POTUS complaining about “Obama judges” vis-a-vis “Trump judges,” must have only intensified that anxiety. It’s all but impossible to imagine Roberts casting a decisive vote for the Republican in a showdown over whether the Democratic impeachment process is constitutional or not, knowing that that decision will be demagogued as Republican justices covering for Trump. I’d bet on Howell’s ruling to stand, at least in its bottom-line holding that the House gets wide latitude on how to conduct impeachment.

I might even bet that the vote will be more lopsided than 5-4.

Exit question: What sort of bombshell would need to be lurking in the Mueller grand jury material for Democrats to add something related to Russiagate to the articles of impeachment? Pelosi has reportedly been adamant behind closed doors that impeachment should focus laser-like on the Ukraine matter. The further it strays from that subject, the more the public will lose sight of what Trump is accused of and the easier it’ll be for Republicans to accuse Dems of kitchen-sinking all of their grievances with the president via impeachment. I think they’re going to stay away from Russia stuff unless there’s something truly explosive in the Mueller stuff — explosive enough that it’s actually more incriminating than the Ukraine matter.

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