Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. A legal victory
Speaker 1: for Democrats in the impeachment inquiry, Washington Chief US District
Speaker 1: Judge Beryl Howell order the Justice Department to turn over
Speaker 1: grand jury materials from Special Counsel Robert Muller's report in
Speaker 1: an opinion that rejected a central claim advanced by Republicans
Speaker 1: in challenging impeachment. Joining me as Stephen Vladdock, constitutional law
Speaker 1: professor at the University of Texas Law School, this was
Speaker 1: a seventy page opinion. What's the essence of what Judge
Speaker 1: Howell decided? So, I think the heart of Chief Judge
Speaker 1: Howell's opinion is that the Justice Department does have to
Speaker 1: comply with Congress's request for the thus far redacted grand
Speaker 1: jury materials that were part of the Mueller investigation. Congress
Speaker 1: had requested those materials as part of its ongoing impeachment investigation.
Speaker 1: The Justice Department had said, we can't comply because these
Speaker 1: are protected by the rules government grand jury secrecy, and
Speaker 1: Chief touched How's opinion basically says this is an exception
Speaker 1: because there is an ongoing legal proceeding in which those
Speaker 1: materials might be relevant. Many Republicans have been arguing that
Speaker 1: the House didn't vote to start the impeachment inquiry and
Speaker 1: so it's invalid or illegitimate. In fact, Senator Lindsay Graham
Speaker 1: has introduced a resolution calling it illegitimate. What did Judge
Speaker 1: how Will say about that? I mean, she basically laughed
Speaker 1: out of court June. You know, I think Judge How's
Speaker 1: opinion is perhaps more important on rejecting that argument that
Speaker 1: the House has to formally vote to authorize and impeachment
Speaker 1: investigation than it is for the bottom line, which is
Speaker 1: because it doesn't these grand jury materials need to be
Speaker 1: turned over. You know, I think a lot of folks
Speaker 1: have been arguing for weeks that this really was a
Speaker 1: specious argument, that there's nothing in the Constitution or the
Speaker 1: House's rules that require any particular procedure in the House
Speaker 1: up to the moment when the House decides to formally
Speaker 1: approve articles of impeachment. And you know, Chief Judge How's
Speaker 1: opinion I think is probably more important in hopefully putting
Speaker 1: that argument to bed once and for all, as compared
Speaker 1: to the more modest takeaway of the actual bottom line,
Speaker 1: which is handing over these particular grand jury documents. This
Speaker 1: is one federal judge, she is the chief judge of
Speaker 1: the District Court in d C. What's the significance of
Speaker 1: her opinion? Well, I think it's significant in two respects. First,
Speaker 1: I think Chief Judge How is widely respected in d C.
Speaker 1: I don't think she is viewed as an extremist by anybody.
Speaker 1: I think folks generally take rulings very seriously. But second,
Speaker 1: I also think that she both deliberately and even if
Speaker 1: not deliberately, I think there's no way in which she
Speaker 1: also isn't speaking for what I suspect. It's going to
Speaker 1: be the final word of the d C Circuit, the
Speaker 1: Federal Peels Court in Washington, to which President Trump's lawyers
Speaker 1: have already said he's going to appeal this decision. And
Speaker 1: I think that just drives home that the judges on
Speaker 1: this issue are generally lined up with the House, not
Speaker 1: on the merits of what the President's done and whether
Speaker 1: that's impeachable, but on the notion that the House is
Speaker 1: allowed to proceed in the manner that it has thus
Speaker 1: far been preceding in. Chief Judge how Will also tackled
Speaker 1: the issue of the president's claimed that he's immune from
Speaker 1: indictment while in office according to an Office of Legal
Speaker 1: Counsel opinion. Yeah, I mean that was the other thing
Speaker 1: that I think really stood out from Chief Judge Howle's
Speaker 1: opinion is she says, even though the Justice Department has
Speaker 1: concluded that the sent president can't be criminally indicted, that's
Speaker 1: just the Justice Department. The issue has never been decided
Speaker 1: by a court, and there are reasons to actually doubt
Speaker 1: that courts would agree with the Justice Department if and
Speaker 1: when we got there. I think that's part of the
Speaker 1: broader just gist of this ruling June, which is the
Speaker 1: administration and the President are making all kinds of pretty
Speaker 1: not arguments about Congress's lack of power in the space,
Speaker 1: and to touch how basically saying these arguments are novel
Speaker 1: for a reason that there's a lot of precedents supporting
Speaker 1: the way Congress is acting here. There's no text that
Speaker 1: says Congress has to go in any particular order. And
Speaker 1: so the notion that whether it's because the President can't
Speaker 1: be indicted, or whether it's because there's historical examples of
Speaker 1: the House voting earlier in the process, the notion that
Speaker 1: those somehow preclude Congress from proceeding to touch how it
Speaker 1: really says, that's just not true, and it's high time
Speaker 1: we said so. Trump's former deputy National Security Advisor, Charles Kupperman,
Speaker 1: he's been called to testify at the impeachment inquiry. He's
Speaker 1: asking a judge to decide whether he has to testify
Speaker 1: to Congress, saying he faces irreconcilable commands, a subpoena from
Speaker 1: House Democrats requiring him to cooperate in an order from
Speaker 1: the White House not to testify. How is it judge
Speaker 1: likely to rule on this? Well, I mean, I think,
Speaker 1: first of all, it's not clear that those demands are
Speaker 1: irreconcilable because he doesn't worked for the White US anymore. Historically,
Speaker 1: the principal lever that the White House had to prevent
Speaker 1: folks from testifying was their continued employment in the executive branch.
Speaker 1: When we're talking about former government officials, it's not clear
Speaker 1: to me it's quite as diary or of a conundrum.
Speaker 1: But June, I think the reality is that the courts
Speaker 1: are likely going to side largely, maybe not entirely, but
Speaker 1: largely with the House in these cases. Because the House
Speaker 1: has the power to investigate the executive branch for impeachment
Speaker 1: or other oversight, part of that investigation surely includes these
Speaker 1: kinds of conversations. There may be more specific lines of questioning, June,
Speaker 1: or documents that are requested that are protected by some
Speaker 1: kind of executive privilege. But the notion that the House
Speaker 1: just generally is powerless, or that these kinds of former
Speaker 1: White House aids are categorically immune from having to even testify,
Speaker 1: I think is really beyond the pale. And I think
Speaker 1: the courts are going to say so. So, you know,
Speaker 1: I think we'll get decisions, more decisions like Chief Judge
Speaker 1: Howell's decision rejecting these categorical arguments from President Trump and
Speaker 1: his lawyers. Then we got into the weeds of the
Speaker 1: more specific case by case assertions of privilege or other
Speaker 1: grounds to you know, block testimony, and there I think
Speaker 1: it will be more of a mixed bag, but only
Speaker 1: once we've really sort of put to rest the notion
Speaker 1: that there's something categorically and structurally wrong about what the
Speaker 1: House is doing thus far? Has the President lost each
Speaker 1: of the attempts to suppress information that have gone to
Speaker 1: the courts? Has he lost each of those battles during
Speaker 1: the short answer is yes. I mean, there isn't a
Speaker 1: single case yet where the executive branch has won one
Speaker 1: of these in the courts. But you know, here we
Speaker 1: are in October, with the presidential election thirteen months away,
Speaker 1: with a new Congress fifteen months away, and so the
Speaker 1: president is losing all of these cases in court, and
Speaker 1: yet none of them have led to a final judgment yet.
Speaker 1: And so I think, from the President's perspective, losing may
Speaker 1: not mean these district court decisions like the one from
Speaker 1: Chief Judge how losing might just mean, you know, having
Speaker 1: one of these decisions affirmed by the Supreme Court. And
Speaker 1: from that perspective, June, I think it's going to be
Speaker 1: very tricky to get these cases all the way up
Speaker 1: and decided before next year's elections and before the new
Speaker 1: Congress takes over in January. Steve, it is possible that
Speaker 1: the Supreme Court could refuse one of these cases, isn't
Speaker 1: it especially if there are no conflicting appellate court decisions. Yeah,
Speaker 1: I mean, it's certainly possible the Supreme Court won't step in.
Speaker 1: You know, it's hard to be confident that, faced with
Speaker 1: the President of the United States asking the Supreme Court
Speaker 1: to step in, that there aren't at least four justices
Speaker 1: who would say, even if we're going to rule against him,
Speaker 1: if he asks, we owe him as a matter of
Speaker 1: institutional respects our time. And I think that's the concern
Speaker 1: about the time, and is that if that argument holds
Speaker 1: way among four justices, which as you know, is all
Speaker 1: it takes to grant the case, it could easily be
Speaker 1: the middle of next term before the case gets argued,
Speaker 1: and then the decision could be mooted by the intervening elections.
Speaker 1: Thanks Steve. That's Stephen Vladdock of the University of Czexis
Speaker 1: Law School. Thanks for listening to the Bloomberg Law Podcast.
Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I am June Brasso.
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