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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. A legal victory

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Speaker 1: for Democrats in the impeachment inquiry, Washington Chief US District

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Speaker 1: Judge Beryl Howell order the Justice Department to turn over

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Speaker 1: grand jury materials from Special Counsel Robert Muller's report in

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Speaker 1: an opinion that rejected a central claim advanced by Republicans

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Speaker 1: in challenging impeachment. Joining me as Stephen Vladdock, constitutional law

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Speaker 1: professor at the University of Texas Law School, this was

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Speaker 1: a seventy page opinion. What's the essence of what Judge

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Speaker 1: Howell decided? So, I think the heart of Chief Judge

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Speaker 1: Howell's opinion is that the Justice Department does have to

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Speaker 1: comply with Congress's request for the thus far redacted grand

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Speaker 1: jury materials that were part of the Mueller investigation. Congress

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Speaker 1: had requested those materials as part of its ongoing impeachment investigation.

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Speaker 1: The Justice Department had said, we can't comply because these

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Speaker 1: are protected by the rules government grand jury secrecy, and

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Speaker 1: Chief touched How's opinion basically says this is an exception

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Speaker 1: because there is an ongoing legal proceeding in which those

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Speaker 1: materials might be relevant. Many Republicans have been arguing that

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Speaker 1: the House didn't vote to start the impeachment inquiry and

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Speaker 1: so it's invalid or illegitimate. In fact, Senator Lindsay Graham

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Speaker 1: has introduced a resolution calling it illegitimate. What did Judge

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Speaker 1: how Will say about that? I mean, she basically laughed

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Speaker 1: out of court June. You know, I think Judge How's

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Speaker 1: opinion is perhaps more important on rejecting that argument that

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Speaker 1: the House has to formally vote to authorize and impeachment

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Speaker 1: investigation than it is for the bottom line, which is

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Speaker 1: because it doesn't these grand jury materials need to be

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Speaker 1: turned over. You know, I think a lot of folks

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Speaker 1: have been arguing for weeks that this really was a

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Speaker 1: specious argument, that there's nothing in the Constitution or the

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Speaker 1: House's rules that require any particular procedure in the House

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Speaker 1: up to the moment when the House decides to formally

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Speaker 1: approve articles of impeachment. And you know, Chief Judge How's

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Speaker 1: opinion I think is probably more important in hopefully putting

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Speaker 1: that argument to bed once and for all, as compared

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Speaker 1: to the more modest takeaway of the actual bottom line,

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Speaker 1: which is handing over these particular grand jury documents. This

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Speaker 1: is one federal judge, she is the chief judge of

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Speaker 1: the District Court in d C. What's the significance of

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Speaker 1: her opinion? Well, I think it's significant in two respects. First,

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Speaker 1: I think Chief Judge How is widely respected in d C.

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Speaker 1: I don't think she is viewed as an extremist by anybody.

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Speaker 1: I think folks generally take rulings very seriously. But second,

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Speaker 1: I also think that she both deliberately and even if

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Speaker 1: not deliberately, I think there's no way in which she

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Speaker 1: also isn't speaking for what I suspect. It's going to

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Speaker 1: be the final word of the d C Circuit, the

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Speaker 1: Federal Peels Court in Washington, to which President Trump's lawyers

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Speaker 1: have already said he's going to appeal this decision. And

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Speaker 1: I think that just drives home that the judges on

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Speaker 1: this issue are generally lined up with the House, not

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Speaker 1: on the merits of what the President's done and whether

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Speaker 1: that's impeachable, but on the notion that the House is

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Speaker 1: allowed to proceed in the manner that it has thus

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Speaker 1: far been preceding in. Chief Judge how Will also tackled

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Speaker 1: the issue of the president's claimed that he's immune from

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Speaker 1: indictment while in office according to an Office of Legal

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Speaker 1: Counsel opinion. Yeah, I mean that was the other thing

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Speaker 1: that I think really stood out from Chief Judge Howle's

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Speaker 1: opinion is she says, even though the Justice Department has

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Speaker 1: concluded that the sent president can't be criminally indicted, that's

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Speaker 1: just the Justice Department. The issue has never been decided

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Speaker 1: by a court, and there are reasons to actually doubt

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Speaker 1: that courts would agree with the Justice Department if and

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Speaker 1: when we got there. I think that's part of the

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Speaker 1: broader just gist of this ruling June, which is the

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Speaker 1: administration and the President are making all kinds of pretty

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Speaker 1: not arguments about Congress's lack of power in the space,

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Speaker 1: and to touch how basically saying these arguments are novel

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Speaker 1: for a reason that there's a lot of precedents supporting

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Speaker 1: the way Congress is acting here. There's no text that

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Speaker 1: says Congress has to go in any particular order. And

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Speaker 1: so the notion that whether it's because the President can't

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Speaker 1: be indicted, or whether it's because there's historical examples of

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Speaker 1: the House voting earlier in the process, the notion that

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Speaker 1: those somehow preclude Congress from proceeding to touch how it

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Speaker 1: really says, that's just not true, and it's high time

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Speaker 1: we said so. Trump's former deputy National Security Advisor, Charles Kupperman,

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Speaker 1: he's been called to testify at the impeachment inquiry. He's

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Speaker 1: asking a judge to decide whether he has to testify

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Speaker 1: to Congress, saying he faces irreconcilable commands, a subpoena from

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Speaker 1: House Democrats requiring him to cooperate in an order from

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Speaker 1: the White House not to testify. How is it judge

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Speaker 1: likely to rule on this? Well, I mean, I think,

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Speaker 1: first of all, it's not clear that those demands are

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Speaker 1: irreconcilable because he doesn't worked for the White US anymore. Historically,

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Speaker 1: the principal lever that the White House had to prevent

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Speaker 1: folks from testifying was their continued employment in the executive branch.

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Speaker 1: When we're talking about former government officials, it's not clear

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Speaker 1: to me it's quite as diary or of a conundrum.

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Speaker 1: But June, I think the reality is that the courts

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Speaker 1: are likely going to side largely, maybe not entirely, but

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Speaker 1: largely with the House in these cases. Because the House

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Speaker 1: has the power to investigate the executive branch for impeachment

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Speaker 1: or other oversight, part of that investigation surely includes these

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Speaker 1: kinds of conversations. There may be more specific lines of questioning, June,

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Speaker 1: or documents that are requested that are protected by some

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Speaker 1: kind of executive privilege. But the notion that the House

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Speaker 1: just generally is powerless, or that these kinds of former

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Speaker 1: White House aids are categorically immune from having to even testify,

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Speaker 1: I think is really beyond the pale. And I think

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Speaker 1: the courts are going to say so. So, you know,

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Speaker 1: I think we'll get decisions, more decisions like Chief Judge

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Speaker 1: Howell's decision rejecting these categorical arguments from President Trump and

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Speaker 1: his lawyers. Then we got into the weeds of the

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Speaker 1: more specific case by case assertions of privilege or other

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Speaker 1: grounds to you know, block testimony, and there I think

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Speaker 1: it will be more of a mixed bag, but only

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Speaker 1: once we've really sort of put to rest the notion

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Speaker 1: that there's something categorically and structurally wrong about what the

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Speaker 1: House is doing thus far? Has the President lost each

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Speaker 1: of the attempts to suppress information that have gone to

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Speaker 1: the courts? Has he lost each of those battles during

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Speaker 1: the short answer is yes. I mean, there isn't a

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Speaker 1: single case yet where the executive branch has won one

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Speaker 1: of these in the courts. But you know, here we

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Speaker 1: are in October, with the presidential election thirteen months away,

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Speaker 1: with a new Congress fifteen months away, and so the

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Speaker 1: president is losing all of these cases in court, and

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Speaker 1: yet none of them have led to a final judgment yet.

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Speaker 1: And so I think, from the President's perspective, losing may

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Speaker 1: not mean these district court decisions like the one from

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Speaker 1: Chief Judge how losing might just mean, you know, having

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Speaker 1: one of these decisions affirmed by the Supreme Court. And

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Speaker 1: from that perspective, June, I think it's going to be

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Speaker 1: very tricky to get these cases all the way up

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Speaker 1: and decided before next year's elections and before the new

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Speaker 1: Congress takes over in January. Steve, it is possible that

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Speaker 1: the Supreme Court could refuse one of these cases, isn't

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Speaker 1: it especially if there are no conflicting appellate court decisions. Yeah,

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Speaker 1: I mean, it's certainly possible the Supreme Court won't step in.

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Speaker 1: You know, it's hard to be confident that, faced with

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Speaker 1: the President of the United States asking the Supreme Court

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Speaker 1: to step in, that there aren't at least four justices

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Speaker 1: who would say, even if we're going to rule against him,

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Speaker 1: if he asks, we owe him as a matter of

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Speaker 1: institutional respects our time. And I think that's the concern

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Speaker 1: about the time, and is that if that argument holds

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Speaker 1: way among four justices, which as you know, is all

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Speaker 1: it takes to grant the case, it could easily be

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Speaker 1: the middle of next term before the case gets argued,

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Speaker 1: and then the decision could be mooted by the intervening elections.

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Speaker 1: Thanks Steve. That's Stephen Vladdock of the University of Czexis

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Speaker 1: Law School. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I am June Brasso.

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Speaker 1: This is Bloomberg