Judge Rules Impeachment Inquiry Is Valid

and on Bloomberg dot com slash podcasts. A legal victory for Democrats in the impeachment inquiry, Washington Chief US District Judge Beryl Howell order the Justice Department to turn over grand jury materials from Special Counsel Robert Muller's report in an opinion that rejected a central claim advanced by Republicans in challenging impeachment. Joining me as Stephen Vladdock, constitutional law professor at the University of Texas Law School, this was

a seventy page opinion. What's the essence of what Judge Howell decided? So, I think the heart of Chief Judge Howell's opinion is that the Justice Department does have to comply with Congress's request for the thus far redacted grand jury materials that were part of the Mueller investigation. Congress had requested those materials as part of its ongoing impeachment investigation.

The Justice Department had said, we can't comply because these are protected by the rules government grand jury secrecy, and Chief touched How's opinion basically says this is an exception because there is an ongoing legal proceeding in which those materials might be relevant. Many Republicans have been arguing that the House didn't vote to start the impeachment inquiry and so it's invalid or illegitimate. In fact, Senator Lindsay Graham

has introduced a resolution calling it illegitimate. What did Judge how Will say about that? I mean, she basically laughed out of court June. You know, I think Judge How's opinion is perhaps more important on rejecting that argument that the House has to formally vote to authorize and impeachment investigation than it is for the bottom line, which is because it doesn't these grand jury materials need to be

turned over. You know, I think a lot of folks have been arguing for weeks that this really was a specious argument, that there's nothing in the Constitution or the House's rules that require any particular procedure in the House up to the moment when the House decides to formally

approve articles of impeachment. And you know, Chief Judge How's opinion I think is probably more important in hopefully putting that argument to bed once and for all, as compared to the more modest takeaway of the actual bottom line, which is handing over these particular grand jury documents. This is one federal judge, she is the chief judge of the District Court in d C. What's the significance of

her opinion? Well, I think it's significant in two respects. First, I think Chief Judge How is widely respected in d C. I don't think she is viewed as an extremist by anybody. I think folks generally take rulings very seriously. But second, I also think that she both deliberately and even if not deliberately, I think there's no way in which she

also isn't speaking for what I suspect. It's going to be the final word of the d C Circuit, the Federal Peels Court in Washington, to which President Trump's lawyers have already said he's going to appeal this decision. And I think that just drives home that the judges on this issue are generally lined up with the House, not on the merits of what the President's done and whether that's impeachable, but on the notion that the House is allowed to proceed in the manner that it has thus

far been preceding in. Chief Judge how Will also tackled the issue of the president's claimed that he's immune from indictment while in office according to an Office of Legal Counsel opinion. Yeah, I mean that was the other thing that I think really stood out from Chief Judge Howle's opinion is she says, even though the Justice Department has concluded that the sent president can't be criminally indicted, that's

just the Justice Department. The issue has never been decided by a court, and there are reasons to actually doubt that courts would agree with the Justice Department if and

when we got there. I think that's part of the broader just gist of this ruling June, which is the administration and the President are making all kinds of pretty not arguments about Congress's lack of power in the space, and to touch how basically saying these arguments are novel for a reason that there's a lot of precedents supporting the way Congress is acting here. There's no text that

says Congress has to go in any particular order. And so the notion that whether it's because the President can't be indicted, or whether it's because there's historical examples of the House voting earlier in the process, the notion that those somehow preclude Congress from proceeding to touch how it really says, that's just not true, and it's high time we said so. Trump's former deputy National Security Advisor, Charles Kupperman,

he's been called to testify at the impeachment inquiry. He's asking a judge to decide whether he has to testify to Congress, saying he faces irreconcilable commands, a subpoena from House Democrats requiring him to cooperate in an order from the White House not to testify. How is it judge likely to rule on this? Well, I mean, I think, first of all, it's not clear that those demands are

irreconcilable because he doesn't worked for the White US anymore. Historically, the principal lever that the White House had to prevent folks from testifying was their continued employment in the executive branch. When we're talking about former government officials, it's not clear to me it's quite as diary or of a conundrum. But June, I think the reality is that the courts are likely going to side largely, maybe not entirely, but

largely with the House in these cases. Because the House has the power to investigate the executive branch for impeachment or other oversight, part of that investigation surely includes these kinds of conversations. There may be more specific lines of questioning, June, or documents that are requested that are protected by some

kind of executive privilege. But the notion that the House just generally is powerless, or that these kinds of former White House aids are categorically immune from having to even testify, I think is really beyond the pale. And I think the courts are going to say so. So, you know, I think we'll get decisions, more decisions like Chief Judge Howell's decision rejecting these categorical arguments from President Trump and

his lawyers. Then we got into the weeds of the more specific case by case assertions of privilege or other grounds to you know, block testimony, and there I think it will be more of a mixed bag, but only once we've really sort of put to rest the notion that there's something categorically and structurally wrong about what the House is doing thus far? Has the President lost each of the attempts to suppress information that have gone to the courts? Has he lost each of those battles during

the short answer is yes. I mean, there isn't a single case yet where the executive branch has won one of these in the courts. But you know, here we are in October, with the presidential election thirteen months away, with a new Congress fifteen months away, and so the president is losing all of these cases in court, and yet none of them have led to a final judgment yet.

And so I think, from the President's perspective, losing may not mean these district court decisions like the one from Chief Judge how losing might just mean, you know, having one of these decisions affirmed by the Supreme Court. And from that perspective, June, I think it's going to be very tricky to get these cases all the way up and decided before next year's elections and before the new

Congress takes over in January. Steve, it is possible that the Supreme Court could refuse one of these cases, isn't it especially if there are no conflicting appellate court decisions. Yeah, I mean, it's certainly possible the Supreme Court won't step in.

You know, it's hard to be confident that, faced with the President of the United States asking the Supreme Court to step in, that there aren't at least four justices who would say, even if we're going to rule against him, if he asks, we owe him as a matter of

institutional respects our time. And I think that's the concern about the time, and is that if that argument holds way among four justices, which as you know, is all it takes to grant the case, it could easily be the middle of next term before the case gets argued, and then the decision could be mooted by the intervening elections. Thanks Steve. That's Stephen Vladdock of the University of Czexis Law School. Thanks for listening to the Bloomberg Law Podcast.

You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I am June Brasso. This is Bloomberg