House Judiciary Committee hearings on impeachment to begin December 4

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Bloomberg News reports, House Invites Trump to Dec. 4 Hearing in Next Impeachment Phase:

The House impeachment inquiry shifts into a new phase next week with a public hearing in the Judiciary Committee where President Donald Trump will be invited to present his defense, according to Chairman Jerrold Nadler.

The hearing aims to explain the constitutional framework for impeachment and the term “high crimes and misdemeanors” as well as whether Trump’s actions as detailed in the evidence gathered so far warrant articles of impeachment, Nadler said Tuesday in a letter to Trump, notifying him of the process.

Nadler, a New York Democrat, gave Trump a deadline of 6 p.m. Dec. 1 to say whether he or his attorney plans to participate. The hearing is scheduled for Dec. 4.

“The president has a choice to make: he can take this opportunity to be represented in the impeachment hearings, or he can stop complaining about the process,” Nadler said in a statement. “I hope that he chooses to participate in the inquiry, directly or through counsel, as other presidents have done before him.”

The letter to Trump said the president’s counsel can make a request to question a panel of as yet unnamed witnesses who will discuss the constitutional basis for impeachment.

Committee officials who briefed reporters wouldn’t discuss the timetable for possible additional hearings, or when the Judiciary Committee might wrap up its work and possibly send any articles of impeachment to the House floor for a vote.

The officials also said no decision has been made on whether to call any of the witnesses who’ve already appeared at the Intelligence Committee’s public hearings or press for testimony from administration officials who so far have refused to appear in the impeachment inquiry.

Court Fights

The Justice Department on Tuesday asked U.S. District Court Judge Ketanji Brown Jackson to put on hold her ruling compelling former White House Counsel Don McGahn to appear before the Judiciary Committee in response to a subpoena issued in May while the administration pursues an appeal of that decision.

Another judge in Washington is considering former Trump national security aide Charles Kupperman’s request for a ruling on whether he must obey a House subpoena or the president’s prohibition on testifying.

Politico reported earller that U.S. District Court Judge Richard Leon set a Dec. 10 hearing on a planned House motion to throw out the lawsuit and indicated that he wanted to rule on the case by late December or early January.

You may recall that Judge Leon upbraided a DOJ lawyer who wanted a delay because of the Thanksgiving holiday:

“You’re obviously not familiar with this court,” Leon said to Shapiro, a Justice Department veteran who has appeared in Leon’s courtroom on scores of occasions over the past two decades. “When we’re talking about a matter of this consequence to this country, you roll your sleeves up and get the job done. … If you can’t do it, you have colleagues who can.”

This gives me a glimmer of hope that Judge Leon will rule quickly, especially after Judge Ketanji Brown Jackson’s decisive ruling put to rest the bogus “absolute privilege” claim asserted by the White House and the Trump “Injustice” Department.

House Democrats say they want to hear from additional witnesses as part of their impeachment inquiry but that they don’t have time to wait for the completion of court proceedings. Edward B. Foley, the Ebersold chair in constitutional law at Ohio State University, says “This is wrong.” House Democrats can hear from more witnesses without a prolonged court fight. Here’s how.

There is a way to get a definitive answer from the federal judiciary by whatever date the House needs.

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The answer is that the House can set a fixed deadline for its vote on articles of impeachment. It can justify this deadline as the date by which its vote must occur so that a Senate trial does not unduly interfere with the 2020 election. This deadline is the functional equivalent of a scheduled execution or Election Day.

The House then can file an emergency motion in federal court, asserting that it needs the testimony of certain key individuals before this deadline. The House can explain that it will hold the impeachment vote with or without the testimony but that the public interest would be better served with the evidence, to which it is constitutionally entitled. Hence the need for expedited court action.

There is an additional practical argument in support of this emergency motion. Although the Senate would be constitutionally empowered in its impeachment trial to subpoena witnesses who did not appear before the House, the Senate might be disinclined to do so. [A simple majority of the Senate could overrule the evidentiary rulings of Chief Justice Roberts, who presides over the Senate trial].

Professor Foley says “the Senate must hear from key witnesses [who have refused to comply with requests for their testimony]. And to assure that the Senate does so, the House must go to court to obtain their testimony.

As long as the House specifies its impeachment deadline, explaining the election-related need for urgency, I am confident that the federal judiciary — including the Supreme Court — can and will definitively rule on the House’s emergency motion in the required time frame. It has done so before.

This is true, the Supreme Court acted very quickly during Watergate. But there is another alternative suggested by a former federal corruption AUSA and former DOJ attorney in a comment to Talking Points Memo. Read This:

I’m a former federal corruption AUSA and also a former DOJ attorney. Let me tell you why I think the House isn’t going to court over the failure of Bolton, Pompeo, etc. to appear for testimony.

If the House were to go to the District Court, any ruling would eventually be appealed to the Supreme Court. The earliest any decision would come is next spring or early summer.

If the House impeaches the president, the impeachment will be conducted no later than January, and occur under the Senate’s impeachment rules.

The rules provide that the House managers can issue subpoenas to anyone, presumably including Bolton and Mulvaney. A senator could object that the testimony is irrelevant or covered by privilege. Rule VII provides that a ruling on such questions will usually be made by the Presiding Officer – the Chief Justice, unless he refers the decision to the full Senate. The Chief Justice would likely decide, in the first instance, claims of executive privilege or attorney-client privilege. He would also likely decide questions such as the crime/fraud exception and the co-conspirator exception to the hearsay rule, as well as questions of waiver of any privilege. Finally, he would rule on subpoenas for the production of documents.

I think it is likely that testimony from Mulvaney would be compelled – at least as far as his public statements, and that Bolton and others would be ordered to testify – at least as to some matters. Additional documentary evidence would likely be compelled, as well.

While a majority of the Senate could vote to overturn the Chief Justice’s ruling, any evidentiary/privilege ruling by him would have a presumption that it was correct. As a political matter, it would be difficult for many Republican senators to vote to overturn an evidentiary ruling by the Chief that is based on the law. (That is different than a motion to dismiss because the evidence is insufficient, where it is the senators’ role to evaluate the weight of the evidence.) Only a handful of Republican senators would have to vote to uphold the Chief Justice’s ruling for a majority to sustain the ruling that testimony or documents should be compelled.

Chief Justice Roberts will make straight rulings on the evidence and the power of the Senate to compel testimony. That’s the best outcome the House can want. (If he didn’t agree with the House Managers on any point during the trial, the Chief would be unlikely to provide a fifth vote in the Court before the trial to compel the same evidence.)

Thus, by moving directly to impeachment, the House gets its best chance of winning the testimony of Bolton, Mulvaney, and others, and doing so in a timely fashion. The House likely won’t be able to depose witnesses or examine all the documents in advance, but that’s a small price to pay for obtaining the evidence at the trial.

In addition, a favorable decision can’t be hung up in the courts. The decision of the Senate on procedural rulings, whether by the Presiding Officer or if reviewed, by the full Senate, is final, and not subject to court review. See Nixon v. United States (involving the impeachment of Judge Nixon, not Richard Nixon).

My guess is Speaker Pelosi is aware of this approach, based on her comments today at her presser that the House won’t go to court now to obtain testimony of Pompeo, Maloney, and Bolton. She noted, however, that the information may be available to the Senate.

I agree with this analysis, but it depends upon two factors: Chief Justice John Roberts must rule on evidentiary matters rather than defer to the Senate. The Senate has 53 Republicans, 45 Democrats and two independents. If the Democrats and independents hold the line, it would only take 3 Republicans to join them to sustain Justice Robert’s evidentiary rulings (the Vice President does not get a tiebreaker vote because he is not the presiding officer of the Senate during an impeachment trial, that is the Chief Justice).

Start working on those vulnerable Republican senators to support the “truth, the whole truth, and nothing but the truth” by issuing subpoenas to those recalcitrant witnesses who have refused to comply with congressional requests for testimony on orders from the White House (obstruction of Congress), and compel them to testify at the Senate impeachment trial.




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