Tuesday, March 10, 2020

Let The Appeals Continue!

Today a three judge panel of the DC Court of Appeals, led by a Clinton judge, ruled that DoJ must provide the House Judiciary Committee with the secret Grand Jury material from the Mueller Dossier. Judge Judith Rogers argued that:

the House Judiciary Committee can obtain the information for impeachment investigations of President Trump under an exception for “judicial proceedings,” per the Federal Rules of Criminal Procedure. 
“[B]ecause that exception encompasses impeachment proceedings and the committee has established a ‘particularized need’ for the grand jury materials, the order of the district court is affirmed,” Judge Judith Rogers wrote in the court’s opinion.                
The lower court had claimed that precedent supported the idea that an impeachment trial is akin to a judicial proceeding, citing a case that allowed the disclosure of grand jury material for the impeachment investigation of President Richard Nixon. 
Rogers noted that the exception to the grand jury secrecy rule applies in cases “preliminarily [sic] to or in connection with a judicial proceeding,” and that the party requesting it must show a “particularized need.”

I'm going to step right out on the limb and say that this will go to the Supreme Court and will be overruled. I doubt that the SCOTUS will buy the idea that the Federal Rules of Criminal Procedure have anything at all to do with impeachment. Beyond that, however, there's a fascinating article on this topic at SCOTUSblog today by W. Burlette Carter: No. The founders did not want Congress doing criminal investigations – even of Trump. This is who Carter is:

Burlette Carter is a professor emerita of law at the George Washington University Law School and author of “Can a Sitting President Be Federally Prosecuted: The Founders Answer.” She filed an amicus brief in support of reversal in Trump v. Mazars.

Below is an extensive excerpt from Carter's article--which I assume is a summary of her amicus brief. I've left out her summary of what went on in the House, the fiddling with the rules, etc. It's her historical approach that I really liked, and which I find cogent:

First, let us consult constitutional history. The British Parliament had the power to bring and investigate criminal charges against any individual. That power was called its power of impeachment. It shared this power with crown prosecutors and common law courts. The Founders rejected this model, narrowing the meaning of “impeachment” to crimes committed by government officials while in office. As for the parts of the Parliament’s impeachment power that affected ordinary citizens, the Founders centralized that power in the executive and judicial branches. They recognized this division of power when they provided in Article I Section 3 of the Constitution that, after a conviction and removal by impeachment, a president will be subject to “Indictment, Trial, Judgment and Punishment” in common law courts. This history indicates that Congress has no power to conduct criminal investigations outside of impeachment. 
Second, impeachment was a “high privilege” of the British House of Commons. It is also a high privilege of the House of Representatives. Indeed, under Article II Section 2 Clause 5, the House has the “sole right” to impeach. This privileged status compels the conclusion that committees with only general jurisdiction cannot decide for themselves when their own impeachment or prosecutorial jurisdiction begins. At a minimum, they need specific jurisdiction. 
Third, the Founders went further. Having experienced unfair crown prosecutions as British subjects, they set forth constitutional protections for the accused in common law trials. It would be odd indeed for the Founders to have done so, but then to have given Congress, with its well-recognized political aspects, broad power to wade into criminal prosecutions outside of impeachment. Congressional investigations could very easily undermine the rights of the accused and the public to a fair trial. 
Fourth, the committees’ actions do not measure up well against traditional notions of “oversight” jurisdiction. “Oversight” has traditionally meant the authority to investigate matters of general applicability, not the authority to investigate specific accusations of personal misconduct. Notably, the words House Democrats struck in the January 2019 rules amendments mentioned above—“with a view toward determining their economy and efficiency”—date back to the Legislative Reorganization Act of 1946. Those words clearly indicate a focus on the conduct of the government and its officials, not private misconduct. Thus, Gales & Seaton’s Register of Debates in Congress reports that in 1831, former President and then-Representative John Adams said, “This House had not and he hoped there never would be occasion for a standing committee of impeachment.” 
Fifth, the plain language of the 2019 House amendments does not support the committees’ broad view of oversight. The term Democrats inserted, “the Executive Office of the President,” cannot reasonably be read as referring to actions by the president, or anyone else, in a personal capacity before being elected. 
Finally, the House Judiciary committee opined in 1973 that an officer cannot be impeached for actions taken prior to assuming the office. An exception might exist in a case of a continuing violation that affects the presidency, but in these cases the committees did not utilize impeachment jurisdiction. 
The Supreme Court has held that a decision by a tribunal lacking subject matter jurisdiction violates due process. A first-year law student knows that, constitutionally speaking, one cannot retroactively fix a subject matter jurisdiction defect. 
Citing cases proclaiming Congress’ broad powers to investigate when there is a legislative purpose, the committees frame these cases as mere inquiries about possible future legislation. The claim does not past the smell test. But also, past cases involved impeachment or specific legislative authorizations, did not involve rights of an accused, or are otherwise distinguishable. The rest of the Constitution is not eclipsed by the fact that Congress can find a legislative purpose for its actions. 
The committees also claim that the Oversight Committee’s oversight jurisdiction is coextensive with that of the entire House. If that is true, it swallows up the Constitution, and apart from invading individual rights, it would provide majority parties a surefire way to deprive minority members of their absolute privilege to vote and participate in determining House actions.
In short, in addition to the separation of powers, (1) a House failure to delegate authority, (2) the impeachment clause’s restrictions on House prosecution powers and (3) individual rights secured under the Constitution all are concrete jurisdictional barriers to these subpoenas. The court should find that broad assertions of “legislative purpose” simply cannot survive these constitutional collisions.


  1. I still cling to a childish perception of judges as deserving respect.

    But these liberal-hack judges are incapable of rule-of-law judgements. The only principle that governs them is the Democrat or progressive ends that they hope to achieve.

    If the democrats want to continue the Mueller investigation, then they have every right to call every single Mueller witness and depose them to their hearts' heart's content.

    But grand jury deliberations are like a dog digging for bones. The only conceivable purpose for democrats reviewing the grand jury files is for Adam Schiff to leak more dossier-like nonsense just like the lies he has been pushing for the last three years.

    These judges should know better, but they refuse to see beyond their partisan desires and they don't give a rat's ass how their judgments will upend the fragile protections built into the bill of rights.

    1. The state of the judicial branch is a huge problem for our constitutional order that has finally reached critical mass--a real threat to our body politic.

      Read Article III of the Constitution, which establishes the Judicial Branch--this is basically it:

      "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

      The only court established by the ratification of the Constitution was the SCOTUS. I suspect the system of "inferior Courts as the Congress may from time to time ordain and establish" has grown far beyond what the Founders ever imagined. It's an unwieldy structure in which justice is routinely delayed and denied by expense and overload. And there is no real way to impose discipline on the inferior courts in a truly effective way--as we're seeing now.

    2. Yet, isn't it certainly related that the federal courts have expanded in tandem with the number of federal crimes and causes of action that can be brought before those courts?

      The more that Congress ever-finely legislates permissible and impermissible conduct, it naturally becomes fodder for a federal cause of action.

      There is no end in sight for the complexity and chaos of the federal judicial system short of wholesale slashing of laws and regulations--and I don't see any hope of that. A few small states have slashed across the board with some success--Idaho comes to mind.

    3. Excellent point. The explosion of federal causes of action and federal crimes is certainly something the Founders didn't envision. And now here we are and nobody has an interest in doing anything about it.

    4. First crucial step is to win the House, Senate and White House in November.

    5. On this I am afraid I disagree with you Mark. The founders most certainly did envision this and even reinforced their remedy for it with the 9th and 10th Amendments. If the People are to be Sovereign they must take some responsibility for restraining the appetites of those who seek power, that is really the only meaningful political job they have since there will always be a fast talking grifter with a 'better idea.' This is precisely what Franklin meant by his remark, "A Republic, if you can keep it." Tocqueville, an outsider two generations later, made much the same observation and prognosticated failure. The Founders realized, though, that eventually they would have to 'Bless it and release it.'
      I accept that I did not meet my responsibility to my progeny. I am willing to do what is necessary to face the situation, the question is 'while the spirit is willing, is the flesh able?'
      Tom S.

    6. Perhaps you could specifically explain what the 9th and 10th amendments have to do with the Judicial Branch as provided for in Article III?