WEBVTT - Judge Rules Impeachment Inquiry Is Valid

0:00:03.520 --> 0:00:07.040
<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

0:00:07.120 --> 0:00:09.680
<v Speaker 1>day we bring you insight and analysis into the most

0:00:09.720 --> 0:00:12.200
<v Speaker 1>important legal news of the day. You can find more

0:00:12.240 --> 0:00:16.160
<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

0:00:16.280 --> 0:00:20.040
<v Speaker 1>and on Bloomberg dot com slash podcasts. A legal victory

0:00:20.040 --> 0:00:24.640
<v Speaker 1>for Democrats in the impeachment inquiry, Washington Chief US District

0:00:24.720 --> 0:00:28.080
<v Speaker 1>Judge Beryl Howell order the Justice Department to turn over

0:00:28.160 --> 0:00:32.040
<v Speaker 1>grand jury materials from Special Counsel Robert Muller's report in

0:00:32.080 --> 0:00:35.919
<v Speaker 1>an opinion that rejected a central claim advanced by Republicans

0:00:36.000 --> 0:00:40.000
<v Speaker 1>in challenging impeachment. Joining me as Stephen Vladdock, constitutional law

0:00:40.000 --> 0:00:43.559
<v Speaker 1>professor at the University of Texas Law School, this was

0:00:43.640 --> 0:00:47.960
<v Speaker 1>a seventy page opinion. What's the essence of what Judge

0:00:47.960 --> 0:00:51.080
<v Speaker 1>Howell decided? So, I think the heart of Chief Judge

0:00:51.080 --> 0:00:53.840
<v Speaker 1>Howell's opinion is that the Justice Department does have to

0:00:53.880 --> 0:00:59.200
<v Speaker 1>comply with Congress's request for the thus far redacted grand

0:00:59.280 --> 0:01:02.520
<v Speaker 1>jury materials that were part of the Mueller investigation. Congress

0:01:02.520 --> 0:01:06.600
<v Speaker 1>had requested those materials as part of its ongoing impeachment investigation.

0:01:07.040 --> 0:01:09.640
<v Speaker 1>The Justice Department had said, we can't comply because these

0:01:09.640 --> 0:01:13.280
<v Speaker 1>are protected by the rules government grand jury secrecy, and

0:01:13.360 --> 0:01:16.600
<v Speaker 1>Chief touched How's opinion basically says this is an exception

0:01:16.640 --> 0:01:20.600
<v Speaker 1>because there is an ongoing legal proceeding in which those

0:01:20.600 --> 0:01:24.880
<v Speaker 1>materials might be relevant. Many Republicans have been arguing that

0:01:25.240 --> 0:01:28.280
<v Speaker 1>the House didn't vote to start the impeachment inquiry and

0:01:28.400 --> 0:01:33.199
<v Speaker 1>so it's invalid or illegitimate. In fact, Senator Lindsay Graham

0:01:33.200 --> 0:01:37.440
<v Speaker 1>has introduced a resolution calling it illegitimate. What did Judge

0:01:37.440 --> 0:01:40.120
<v Speaker 1>how Will say about that? I mean, she basically laughed

0:01:40.160 --> 0:01:42.200
<v Speaker 1>out of court June. You know, I think Judge How's

0:01:42.200 --> 0:01:47.400
<v Speaker 1>opinion is perhaps more important on rejecting that argument that

0:01:47.440 --> 0:01:50.600
<v Speaker 1>the House has to formally vote to authorize and impeachment

0:01:50.600 --> 0:01:53.400
<v Speaker 1>investigation than it is for the bottom line, which is

0:01:53.720 --> 0:01:56.960
<v Speaker 1>because it doesn't these grand jury materials need to be

0:01:57.000 --> 0:01:58.960
<v Speaker 1>turned over. You know, I think a lot of folks

0:01:59.000 --> 0:02:02.080
<v Speaker 1>have been arguing for weeks that this really was a

0:02:02.120 --> 0:02:05.320
<v Speaker 1>specious argument, that there's nothing in the Constitution or the

0:02:05.360 --> 0:02:09.600
<v Speaker 1>House's rules that require any particular procedure in the House

0:02:09.720 --> 0:02:12.320
<v Speaker 1>up to the moment when the House decides to formally

0:02:12.360 --> 0:02:15.360
<v Speaker 1>approve articles of impeachment. And you know, Chief Judge How's

0:02:15.360 --> 0:02:19.000
<v Speaker 1>opinion I think is probably more important in hopefully putting

0:02:19.120 --> 0:02:22.520
<v Speaker 1>that argument to bed once and for all, as compared

0:02:22.560 --> 0:02:25.280
<v Speaker 1>to the more modest takeaway of the actual bottom line,

0:02:25.560 --> 0:02:29.040
<v Speaker 1>which is handing over these particular grand jury documents. This

0:02:29.200 --> 0:02:32.160
<v Speaker 1>is one federal judge, she is the chief judge of

0:02:32.240 --> 0:02:35.799
<v Speaker 1>the District Court in d C. What's the significance of

0:02:35.800 --> 0:02:39.399
<v Speaker 1>her opinion? Well, I think it's significant in two respects. First,

0:02:39.400 --> 0:02:42.400
<v Speaker 1>I think Chief Judge How is widely respected in d C.

0:02:42.560 --> 0:02:45.639
<v Speaker 1>I don't think she is viewed as an extremist by anybody.

0:02:45.720 --> 0:02:49.680
<v Speaker 1>I think folks generally take rulings very seriously. But second,

0:02:49.680 --> 0:02:53.280
<v Speaker 1>I also think that she both deliberately and even if

0:02:53.320 --> 0:02:55.280
<v Speaker 1>not deliberately, I think there's no way in which she

0:02:55.320 --> 0:02:57.400
<v Speaker 1>also isn't speaking for what I suspect. It's going to

0:02:57.440 --> 0:02:59.680
<v Speaker 1>be the final word of the d C Circuit, the

0:02:59.680 --> 0:03:02.720
<v Speaker 1>Federal Peels Court in Washington, to which President Trump's lawyers

0:03:02.720 --> 0:03:05.760
<v Speaker 1>have already said he's going to appeal this decision. And

0:03:05.800 --> 0:03:09.240
<v Speaker 1>I think that just drives home that the judges on

0:03:09.280 --> 0:03:12.320
<v Speaker 1>this issue are generally lined up with the House, not

0:03:12.400 --> 0:03:14.919
<v Speaker 1>on the merits of what the President's done and whether

0:03:14.919 --> 0:03:17.480
<v Speaker 1>that's impeachable, but on the notion that the House is

0:03:17.480 --> 0:03:20.320
<v Speaker 1>allowed to proceed in the manner that it has thus

0:03:20.320 --> 0:03:23.680
<v Speaker 1>far been preceding in. Chief Judge how Will also tackled

0:03:23.800 --> 0:03:27.080
<v Speaker 1>the issue of the president's claimed that he's immune from

0:03:27.160 --> 0:03:30.680
<v Speaker 1>indictment while in office according to an Office of Legal

0:03:30.720 --> 0:03:33.000
<v Speaker 1>Counsel opinion. Yeah, I mean that was the other thing

0:03:33.040 --> 0:03:35.000
<v Speaker 1>that I think really stood out from Chief Judge Howle's

0:03:35.040 --> 0:03:38.240
<v Speaker 1>opinion is she says, even though the Justice Department has

0:03:38.360 --> 0:03:42.080
<v Speaker 1>concluded that the sent president can't be criminally indicted, that's

0:03:42.120 --> 0:03:44.760
<v Speaker 1>just the Justice Department. The issue has never been decided

0:03:44.800 --> 0:03:47.560
<v Speaker 1>by a court, and there are reasons to actually doubt

0:03:48.080 --> 0:03:50.320
<v Speaker 1>that courts would agree with the Justice Department if and

0:03:50.320 --> 0:03:52.280
<v Speaker 1>when we got there. I think that's part of the

0:03:52.320 --> 0:03:55.920
<v Speaker 1>broader just gist of this ruling June, which is the

0:03:55.960 --> 0:03:59.640
<v Speaker 1>administration and the President are making all kinds of pretty

0:03:59.760 --> 0:04:04.120
<v Speaker 1>not arguments about Congress's lack of power in the space,

0:04:04.440 --> 0:04:06.640
<v Speaker 1>and to touch how basically saying these arguments are novel

0:04:06.680 --> 0:04:10.040
<v Speaker 1>for a reason that there's a lot of precedents supporting

0:04:10.480 --> 0:04:13.920
<v Speaker 1>the way Congress is acting here. There's no text that

0:04:13.960 --> 0:04:16.920
<v Speaker 1>says Congress has to go in any particular order. And

0:04:16.960 --> 0:04:19.520
<v Speaker 1>so the notion that whether it's because the President can't

0:04:19.520 --> 0:04:23.200
<v Speaker 1>be indicted, or whether it's because there's historical examples of

0:04:23.200 --> 0:04:25.800
<v Speaker 1>the House voting earlier in the process, the notion that

0:04:25.800 --> 0:04:29.080
<v Speaker 1>those somehow preclude Congress from proceeding to touch how it

0:04:29.080 --> 0:04:31.240
<v Speaker 1>really says, that's just not true, and it's high time

0:04:31.279 --> 0:04:35.640
<v Speaker 1>we said so. Trump's former deputy National Security Advisor, Charles Kupperman,

0:04:36.080 --> 0:04:39.960
<v Speaker 1>he's been called to testify at the impeachment inquiry. He's

0:04:39.960 --> 0:04:42.640
<v Speaker 1>asking a judge to decide whether he has to testify

0:04:42.720 --> 0:04:47.160
<v Speaker 1>to Congress, saying he faces irreconcilable commands, a subpoena from

0:04:47.200 --> 0:04:50.640
<v Speaker 1>House Democrats requiring him to cooperate in an order from

0:04:50.680 --> 0:04:53.800
<v Speaker 1>the White House not to testify. How is it judge

0:04:53.839 --> 0:04:56.400
<v Speaker 1>likely to rule on this? Well, I mean, I think,

0:04:56.400 --> 0:04:57.919
<v Speaker 1>first of all, it's not clear that those demands are

0:04:57.920 --> 0:05:01.320
<v Speaker 1>irreconcilable because he doesn't worked for the White US anymore. Historically,

0:05:01.720 --> 0:05:04.400
<v Speaker 1>the principal lever that the White House had to prevent

0:05:04.400 --> 0:05:07.760
<v Speaker 1>folks from testifying was their continued employment in the executive branch.

0:05:07.760 --> 0:05:10.320
<v Speaker 1>When we're talking about former government officials, it's not clear

0:05:10.360 --> 0:05:13.160
<v Speaker 1>to me it's quite as diary or of a conundrum.

0:05:13.440 --> 0:05:15.640
<v Speaker 1>But June, I think the reality is that the courts

0:05:15.720 --> 0:05:19.520
<v Speaker 1>are likely going to side largely, maybe not entirely, but

0:05:19.640 --> 0:05:22.800
<v Speaker 1>largely with the House in these cases. Because the House

0:05:22.880 --> 0:05:26.080
<v Speaker 1>has the power to investigate the executive branch for impeachment

0:05:26.279 --> 0:05:30.120
<v Speaker 1>or other oversight, part of that investigation surely includes these

0:05:30.200 --> 0:05:36.000
<v Speaker 1>kinds of conversations. There may be more specific lines of questioning, June,

0:05:36.200 --> 0:05:39.520
<v Speaker 1>or documents that are requested that are protected by some

0:05:39.640 --> 0:05:42.520
<v Speaker 1>kind of executive privilege. But the notion that the House

0:05:42.600 --> 0:05:46.400
<v Speaker 1>just generally is powerless, or that these kinds of former

0:05:46.560 --> 0:05:51.159
<v Speaker 1>White House aids are categorically immune from having to even testify,

0:05:51.200 --> 0:05:53.560
<v Speaker 1>I think is really beyond the pale. And I think

0:05:53.640 --> 0:05:55.479
<v Speaker 1>the courts are going to say so. So, you know,

0:05:55.480 --> 0:05:58.800
<v Speaker 1>I think we'll get decisions, more decisions like Chief Judge

0:05:58.800 --> 0:06:03.159
<v Speaker 1>Howell's decision rejecting these categorical arguments from President Trump and

0:06:03.200 --> 0:06:05.120
<v Speaker 1>his lawyers. Then we got into the weeds of the

0:06:05.160 --> 0:06:08.760
<v Speaker 1>more specific case by case assertions of privilege or other

0:06:08.880 --> 0:06:11.920
<v Speaker 1>grounds to you know, block testimony, and there I think

0:06:11.960 --> 0:06:14.159
<v Speaker 1>it will be more of a mixed bag, but only

0:06:14.200 --> 0:06:17.080
<v Speaker 1>once we've really sort of put to rest the notion

0:06:17.160 --> 0:06:20.760
<v Speaker 1>that there's something categorically and structurally wrong about what the

0:06:20.800 --> 0:06:24.200
<v Speaker 1>House is doing thus far? Has the President lost each

0:06:24.200 --> 0:06:26.880
<v Speaker 1>of the attempts to suppress information that have gone to

0:06:26.960 --> 0:06:30.160
<v Speaker 1>the courts? Has he lost each of those battles during

0:06:30.200 --> 0:06:32.080
<v Speaker 1>the short answer is yes. I mean, there isn't a

0:06:32.120 --> 0:06:35.200
<v Speaker 1>single case yet where the executive branch has won one

0:06:35.240 --> 0:06:37.599
<v Speaker 1>of these in the courts. But you know, here we

0:06:37.640 --> 0:06:41.800
<v Speaker 1>are in October, with the presidential election thirteen months away,

0:06:41.839 --> 0:06:44.800
<v Speaker 1>with a new Congress fifteen months away, and so the

0:06:44.800 --> 0:06:47.720
<v Speaker 1>president is losing all of these cases in court, and

0:06:47.800 --> 0:06:50.400
<v Speaker 1>yet none of them have led to a final judgment yet.

0:06:50.720 --> 0:06:54.160
<v Speaker 1>And so I think, from the President's perspective, losing may

0:06:54.240 --> 0:06:57.200
<v Speaker 1>not mean these district court decisions like the one from

0:06:57.240 --> 0:06:59.880
<v Speaker 1>Chief Judge how losing might just mean, you know, having

0:07:00.000 --> 0:07:02.599
<v Speaker 1>one of these decisions affirmed by the Supreme Court. And

0:07:02.680 --> 0:07:04.440
<v Speaker 1>from that perspective, June, I think it's going to be

0:07:04.520 --> 0:07:06.719
<v Speaker 1>very tricky to get these cases all the way up

0:07:06.720 --> 0:07:10.400
<v Speaker 1>and decided before next year's elections and before the new

0:07:10.440 --> 0:07:14.720
<v Speaker 1>Congress takes over in January. Steve, it is possible that

0:07:14.760 --> 0:07:18.240
<v Speaker 1>the Supreme Court could refuse one of these cases, isn't

0:07:18.240 --> 0:07:22.720
<v Speaker 1>it especially if there are no conflicting appellate court decisions. Yeah,

0:07:22.720 --> 0:07:24.800
<v Speaker 1>I mean, it's certainly possible the Supreme Court won't step in.

0:07:25.040 --> 0:07:27.400
<v Speaker 1>You know, it's hard to be confident that, faced with

0:07:27.720 --> 0:07:30.080
<v Speaker 1>the President of the United States asking the Supreme Court

0:07:30.120 --> 0:07:32.360
<v Speaker 1>to step in, that there aren't at least four justices

0:07:32.760 --> 0:07:35.040
<v Speaker 1>who would say, even if we're going to rule against him,

0:07:35.200 --> 0:07:37.040
<v Speaker 1>if he asks, we owe him as a matter of

0:07:37.040 --> 0:07:41.000
<v Speaker 1>institutional respects our time. And I think that's the concern

0:07:41.080 --> 0:07:43.680
<v Speaker 1>about the time, and is that if that argument holds

0:07:43.800 --> 0:07:46.080
<v Speaker 1>way among four justices, which as you know, is all

0:07:46.120 --> 0:07:48.240
<v Speaker 1>it takes to grant the case, it could easily be

0:07:48.680 --> 0:07:51.080
<v Speaker 1>the middle of next term before the case gets argued,

0:07:51.440 --> 0:07:54.280
<v Speaker 1>and then the decision could be mooted by the intervening elections.

0:07:54.280 --> 0:07:57.360
<v Speaker 1>Thanks Steve. That's Stephen Vladdock of the University of Czexis

0:07:57.440 --> 0:08:02.480
<v Speaker 1>Law School. Thanks for listening to the Bloomberg Law Podcast.

0:08:02.800 --> 0:08:06.880
<v Speaker 1>You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

0:08:06.960 --> 0:08:10.840
<v Speaker 1>and on Bloomberg dot com slash podcast. I am June Brasso.

0:08:11.320 --> 0:08:12.640
<v Speaker 1>This is Bloomberg