Moving on impeachment - Part 2

The House Judiciary Committee on Friday asked a federal judge to unseal grand jury secrets related to Robert S. Mueller III’s investigation, using the court filing to declare that lawmakers have already in effect launched an impeachment investigation of President Trump.

In a legal maneuver that carries significant political overtones, the committee told a judge that it needs access to the grand jury evidence collected by Mr. Mueller as special counsel — such as witness testimony — because it is “investigating whether to recommend articles of impeachment” against the president.

  NYT

Someething tells me this was the whole point of having Mueller testify. They needed to get around Nancy Pelosi.

“Because Department of Justice policies will not allow prosecution of a sitting president, the United States House of Representatives is the only institution of the federal government that can now hold President Trump accountable for these actions,” the filing told the judge, Beryl A. Howell, who supervised Mr. Mueller’s grand jury.

Sorry, gang. It's not good television. It's not great optics. But it's a big turn of the screw. The House Judiciary Committee plans to represent to a court of competent jurisdiction that it is considering bringing forth articles of impeachment against the president*. It is couching its request in purely constitutional terms—namely, its Article I powers to recommend and to act upon such proposed measures. Once this is done, if it gets the evidence it seeks, the committee at least will have to launch an impeachment inquiry to test that evidence. If it doesn't, the committee will be guilty of misrepresenting itself to the courts, which the courts do not like at all.
  Charles P Pierce

I hope that's the case.

“Too much has been made of the phrase ‘an impeachment inquiry,’” Mr. Nadler said at a news conference. “We are doing what our court filing says we are doing, what I said we are doing, and that is we are using our full Article I powers to investigate the conduct of the president and to consider what remedies there are. Among other things we will consider, obviously, is whether to recommend articles of impeachment.”

Other members of the committee were more forward.

“We’re now crossing a threshold with this filing, and we are now officially entering into an examination of whether or not to recommend articles of impeachment,” Representative Veronica Escobar, Democrat of Texas, declared.

[...]

Mr. Nadler said the committee would continue the investigation during the House’s six-week summer recess, calling additional witnesses and filing a lawsuit as soon as next week to force Donald F. McGahn II, the former White House counsel, to testify unless he agrees to come voluntarily. Mr. McGahn’s account of presidential behavior sits at the center of Mr. Mueller’s report.

  NYT

Trump's head is going to explode. Who will get hit with the shrapnel?

Aside from the coming court case, it is unclear whether the Judiciary Committee’s assertion that an impeachment investigation is effectively already underway will resolve a fight that has divided the Democratic Party. Around 100 House Democrats have said they support opening impeachment proceedings — including several more Friday morning — leaving about 135 who have not come out in support of such an inquiry or who outright oppose it.

Afraid of Nancy?

Some Democrats see impeaching Mr. Trump as a moral imperative that would leave a black mark on his historical record, even if Senate Republicans are unlikely to remove him from office. Others fear it could provoke a backlash, firing up Mr. Trump’s supporters and endangering newly elected Democrats who won moderate districts in the 2018 midterm.

Why do they think Democrats won those districts? It was a backlash against Trump.

In 1974, the Watergate prosecutor, Leon Jaworski, and his grand jury obtained a judge’s permission to send the evidence they had gathered to the House Judiciary Committee, which was already formally conducting an impeachment inquiry into Nixon.

In that case, the Nixon Justice Department did not object to letting lawmakers see the materials. In the current case, the committee is trying to get the material on its own. Attorney General William P. Barr has declined requests by Mr. Nadler to join the committee in petitioning the court.

I'm sure the Trump cabal with it's main enabler, Mitch McConnell, are hoping they've successfully packed the courts enough to protect Trump. But this is the DC federal district court with chief judge Beryl Howell, appointed in December 2010, by Barack Obama. If she grants the Judiciary Committee's request, will Trump appeal? Or will he just smear her as biased and conflicted?

First things first: will she grant it?

Some might argue that for Congress to access grand jury material under the judicial proceedings exception, it must have a formal impeachment inquiry underway. But that argument overlooks another key historical precedent: the Starr Report. Starr got judicial approval, using the judicial proceedings exception, to send his report to the House Judiciary Committee before the committee had done any investigation of its own into Clinton’s alleged wrongdoing. In fact, it was the Starr Report itself that eventually prompted impeachment proceedings for Clinton.

Even more telling, the judicial proceedings exception allowed the final report on the Iran-Contra investigation to reach the public in 1994. Obviously, the court of public opinion is not a “judicial proceeding,” but the D.C. federal appeals court didn’t let that stand in the way of the enormous public interest in the investigation’s findings. The court concluded that its own adjudication of whether to release the report constituted the “judicial proceeding” required by the rule.

Here, the House Judiciary Committee is exercising its constitutional authority to investigate allegations of the Trump administration’s obstruction of justice and other abuses of power. It launched its investigation on March 4, and authorized a subpoena for the full Mueller report on April 3. The full House of Representatives, moreover, has passed a resolution 420-0 calling on the Justice Department to make Mueller’s complete report available to Congress. The constitutional imperatives are clear.

[...]

Howell will have the discretion to craft an order allowing disclosure to Congress with whatever limitations on, or allowance for, further disclosure she deems appropriate.

[...]

Like her predecessor facing “a matter of the most critical moment to the nation” in 1974, Howell should find it “difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information.” The health of our democracy should, as it has in the past, tilt the scales in favor of disclosure to Congress.

  Politico

We shall see