There is an important granular aspect to the validity of the House impeachment process that few are paying attention to. If the HJC loses this case in the DC Appellate Court, it means there is no constitutional foundation recognized to the “impeachment inquiry.”
Without the constitutional recognition of the judicial branch then: (a) Pelosi/Lawfare have to restart the process with a genuine House vote; or (b) the ongoing impeachment process will have no recognized constitutional standing; and (c) the Senate could ignore any House impeachment vote, cast without recognized constitutional standing.
BACKSTORY: On October 25th DC Judge Beryl Howell granted the House Judiciary Committee (HJC) request for legal authority to receive 6e grand jury material underlying the Mueller report.
Additionally, and most importantly, within the Howell decision she officially recognized the HJC effort was predicated on a constitutional impeachment process. In essence Howell’s opinion granted the HJC with “judicial enforcement authority.”
The DOJ moved to appeal the decision and requested a “stay” pending appeal. Judge Howell rejected the DOJ “stay” motion.
The DOJ then appealed to the DC Court of Appeals. A panel of three judges issued an “administrative stay”, blocking enforcement of the Howell ruling while the appeal was reviewed. The DC Appellate Court has now scheduled the arguments within the appeal.
Right now; and considering the House voted on a ‘resolution’ to support Nancy Pelosi’s unilaterally decreed “impeachment inquiry”; and due to the lack of structural specifics within the constitution surrounding the impeachment process; I would put the odds at 50/50 the House Judiciary Committee could win this case.
It is critical that AG Bill Barr sends his best constitutional lawyers to defend the interests of the executive branch in this appeal. The DOJ has a solid constitutional argument to make; and if they end up losing the decision the verbal arguments will be a key factor in whether the Supreme Court would take up the issue (after en banc appeal exhausted).
The HJC objective is simple. They seek judicial enforcement authority for their subpoenas so their targets cannot legally refuse to give testimony; and by extension the constitutional premise of the House process is affirmed.
The premise for both fronts: (1) document subpoena 6e material, and (2) testimony from White House Counsel Don McGahn, is predicated on penetrating a constitutional firewall that exists within the separation of powers.
Under existing SCOTUS precedent, the White House can be compelled to deliver Executive Branch documents and testimony so long as an official legislative branch impeachment process is underway.
Judge Beryl Howell was the first person in the judicial branch to recognize and accept the HJC position that such an official impeachment process was ongoing. At the heart of this appeal is that recognition.
If the DOJ can successfully argue the House has not followed the traditional and constitutional process that authorizes impeachment investigation; and allows the HJC to penetrate the separation of power firewall; it will be a major blow to the Lawfare scheme.
A ruling in favor of the DOJ would invalidate the narrative of the House.
A ruling in favor of the DOJ would also allow the Senate to dismiss any results from Schiff and Nadler’s investigation, because their process would not be predicated on constitutional provisions for impeachment.
In short, this is a pretty important ruling.