The inexorable march towards impeachment

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On July 26, House Judiciary Chairman Jerrold Nadler filed a petition in federal court to obtain secret grand jury material underlying former special counsel Robert Mueller’s report, arguing the panel needs the information as it weighs whether to pursue impeachment of President Donald Trump.

You can read the petition here.

The Judiciary committee’s filing says the panel needs the information in order to determine whether to recommend articles of impeachment, partly an attempt to give the request more weight in the eyes of the court.

“To meaningfully consider whether to exercise this authority — as well as to exercise its other pressing legislative and oversight responsibilities — the Committee must obtain evidence and testimony in a timely manner,” the filing reads.

The D.C. Circuit Court of Appeals en banc decision in Haldeman v. Sirica affirmed a district court decision to disclose grand jury materials regarding the Watergate investigation to the House Judiciary Committee, which was considering whether to impeach President Richard Nixon. The D.C. Circuit ruled that the district court judge, Judge John Sirica, “ha[d] dealt at length with” the grand-jury-disclosure question and that the D.C. Circuit was “in general agreement with his handling of [the] matter.” Judge Sirica had held that district courts have inherent authority to release grand jury materials, even if no Rule 6(e)(3) exception applied.

A Rule6 (e)(3) exception permits district court judges to release grand jury materials “preliminarily to or in connection with a judicial proceeding.” The House Judiciary Committee’s impeachment investigation would fall within this exception and would provide a basis pursuant to the rules to release grand jury materials (hence the pleading framing the request as preliminary to a determination whether to recommend articles of impeachment).

The House Judiciary Committee asked that the Department of Justice join in its request, but was rebuffed. Trump’s “Injustice” Department reportedly will oppose the committee’s request. This is unprecedented. In all prior Independent Counsel and Special Counsel investigations, the Department of Justice has routinely requested that the grand jury materials be made available to congressional committees.

House Judiciary Chairman Jerrold Nadler is going to win this case.

On August 7, the House Judiciary Committee asked a federal court to force one of former special counsel Robert Mueller’s star witnesses to testify on Capitol Hill over objections from the White House, a crucial move as House Democrats consider whether to bring articles of impeachment against President Donald Trump. House Judiciary Committee slaps Don McGahn with lawsuit to enforce subpoena:

The Democrat-led panel filed a lawsuit to enforce a subpoena against former White House counsel Don McGahn, in a long-awaited effort to secure his testimony and defeat the White House’s efforts to block former top advisers from testifying about their West Wing tenure.

In a 54-page filing, the committee made clear that it is conducting an impeachment investigation, employing its strongest language to date to suggest that the panel is seriously weighing efforts to recommend Trump’s removal from office.

“McGahn is the Judiciary Committee’s most important fact witness in its consideration of whether to recommend articles of impeachment and its related investigation of misconduct by the president, including acts of obstruction of justice described in the special counsel’s report,” the filing states.

The filing also touches on what Democrats believe is the urgent nature of the lawsuit, as they seek to persuade a federal judge to issue a swift ruling in order to expedite consideration of impeachment.

“Each day that McGahn refuses to testify, the Judiciary Committee is deprived of its ability to carry out the significant Article I task of determining whether to recommend that the president be impeached and potentially removed from office,” the filing states.

* * *

White House lawyers — at Trump’s direction and with the help of the Justice Department — have repeatedly intervened to prevent former senior officials from answering lawmakers’ questions and providing documents, broadly asserting that those ex-advisers have “absolute immunity” from discussing matters related to their White House service.

Pro Tip: There is no such thing as “absolute immunity” at law. Even privileges are limited, and must give way when there is evidence of criminal misconduct or obstruction of justice.

The lawsuit centers on that claim, which Democrats expressed confidence that they can defeat in court. They’ve argued that a victory in McGahn’s case would unlock testimony from a long list of Mueller’s other crucial witnesses. They include McGahn’s top deputy, Annie Donaldson, and former White House communications director Hope Hicks — both of whom have acquiesced to the White House’s directives.

All three were subpoenaed earlier this year as part of the committee’s wide-ranging investigation into potential obstruction of justice by Trump. McGahn blew off a subpoena in May, depriving the Judiciary Committee, at least for now, of potentially bombshell testimony about Trump’s efforts to thwart the Mueller probe.

Just one of those witnesses, Hicks, has appeared for an in-person interview with the committee. But White House lawyers objected to hundreds of lawmakers’ questions that centered on her tenure as communications director, allowing her only to address inquiries about her time working on Trump’s presidential campaign.

Donaldson, meanwhile, was permitted to answer questions in writing because she lives outside Washington and was pregnant on the date of her subpoena; but she, too, refused to answer questions centering on her tenure as McGahn’s chief of staff, citing the White House’s objections.

Nadler argued that Hicks’ interview and Donaldson’s repeated refusal to answer substantive questions will aid his committee’s lawsuit against McGahn because it illustrates the full extent of the White House’s stonewalling.

“We knew this was going to happen,” Nadler told POLITICO in an interview after Hicks’ closed-door testimony. “The point of it was to dramatize for the court what the implications of this are.”

* * *

Democrats attempted on Wednesday to link the McGahn lawsuit to the earlier effort to access Mueller’s grand jury materials, a formal notice that ensures their lawsuit — at least initially — will come before the D.C. federal court’s chief judge, Beryl Howell.

Howell, who oversees all grand jury matters in the D.C. district, has set a September schedule for considering that case and will now decide whether to consider it formally linked to the McGahn matter or whether to farm the case out to a different judge. It’s unclear whether McGahn’s attorney or the Justice Department will weigh in on that matter.

Oh, Trump’s “Injustce Department” is going to weigh in, it is now Trump’s private law firm.

Earlier this week, Nadler outlined an ambitious timeline for when the committee could formally recommend articles of impeachment against the president. In an MSNBC interview, Nadler said “we could get to that late in the fall.” But Howell laid out a briefing schedule in the grand jury case that doesn’t begin until September, suggesting it could be weeks before the McGahn case gets moving, too.

On Thursday, House Judiciary Committee Chairman Jerry Nadler said publicly for the first time that his panel is conducting an impeachment inquiry into President Donald Trump, adding that the committee will decide by the end of the year whether to refer articles of impeachment to the House floor. Nadler: ‘This is formal impeachment proceedings’:

“This is formal impeachment proceedings,” Nadler said in a CNN interview. “We are investigating all the evidence, gathering the evidence. And we will [at the] conclusion of this — hopefully by the end of the year — vote to vote articles of impeachment to the House floor. Or we won’t. That’s a decision that we’ll have to make. But that’s exactly the process we’re in right now.”

That timeline would put an impeachment battle in the middle of the Democratic presidential primary contests, which begin in early 2020 — a concern for Democrats who believe that the window to act on impeachment is quickly closing.

Pelosi has said impeachment is too divisive for the country and has relied on her six investigative committees to uncover new information about Trump’s alleged misconduct, focusing on his finances and his conduct as president.

Committee subpoenas for Trump organization financial records are already before two courts of appeal, and the House Ways and Means Committee recently filed a lawsuit for Trump’s federal tax returns. All of these cases have been expedited by the Courts. And last week we learned that banks are complying with congressional subpoenas for Trump’s financial records.

Nadler said Pelosi “has been very cooperative” in his panel’s efforts, and she personally signed off on recent court filings that effectively put to rest the semantic debate over whether to call the Judiciary Committee’s investigation an impeachment inquiry.

“The fact is, we are doing an investigation. We are investigating the facts, investigating the evidence,” Nadler said. “We are going into court to get witnesses all with a view toward deciding and recommending to the House whether to impeach the president.”

* * *

Articles of impeachment have separately been referred to the Judiciary Committee, but Nadler said on Thursday that the panel could draw up its own impeachment articles that “more closely fit the evidence.”

More than half of the House Democratic caucus supports a formal impeachment inquiry, a milestone that was reached last week. But some pro-impeachment lawmakers say the issue is effectively moot now that the House has told federal courts that it is investigating whether to impeach the president.

House Judiciary Chairman Jerrold Nadler clarified in an interview with Rachel Maddow that this timeline is just approximate:

NADLER: It`s an assumption as to when – as to how long these court fights will take and hearings with various witnesses.  We`ll spend I assume September and October on hearings with witnesses that we don`t have to get through compulsory process in court. Hopefully, the court proceedings will get us the witnesses like McGahn and others after the end of October.  And if that is correct, then that`s an approximate time frame.

* * *

NADLER: We don`t know the time frame. We`ve asked that it be expedited and one thing – and we said in our papers, in an impeachment proceeding, which we said this is in our legal papers, you`re entitled to the highest degree of expedition because obviously of time considerations that aren`t present in normal oversight. Hopefully, we get a decision from the lower court, I don`t know, a number of weeks, and from the court of appeals in a couple of months and hopefully it doesn`t go beyond that.

* * *

NADLER: Yes, it`s a quick time frame. But again, I`m not saying the end of the year, could be sooner, could be later. We have to do what we have to do. By the way, we`re not limited nor will we be limited by McGahn and the other people I mentioned are very key to consideration of an impeachment for obstruction of justice and abuse of power, all of the things in the Mueller report.

But we have other grounds we have to look into, too, and we`ll be holding hearings. The violations of the Emoluments Clause of the Constitution, and just the fact of withholding or opposing congressional subpoenas, that was Article 3 of the Nixon impeachment. And here, he`s gone way further, even to the extent of saying we`ll oppose all subpoenas, which is another way of saying we don`t recognize the separation of powers and we are going to aggrandize power to the executive branch, which is core impeachable, and there are others, too. So, we`ll be looking at all of these things.

* * *

NADLER: Well, if we decide to do articles of impeachment, we`ll have a vote. If not, we won`t have a vote.

So we are probably into November. Hopefully the House Judiciary Committee will have what it needs to make its decision before Thanksgiving, so that American families can have “the conversation” that this country needs to have about what to do about the most corrupt and lawless administration in American history.

A House impeachment would force the Senate to go on record where it stands with the corruption and lawlessness of this president. Republican senators who vote to acquit out of GOP tribalism do not stand for the rule of law or preserving the Constitution, and should be defeated in November.




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