While Democrats proceed with a focused and methodical impeachment inquiry, Republicans have insisted on the political equivalent of sticking their fingers in their ears and screaming, “I can’t hear you!”
In trying to deflect against the substantial evidence of President Donald Trump’s wrongdoing, their arguments keeping falling apart under the smallest amount of pressure. Nevertheless, they keep repeating the same facile talking points — that the House should hold a full vote on whether to enter and impeachment inquiry, that it’s unfair to hold interviews of key witnesses in closed hearings, that Trump deserves all the rights of a defendant in a criminal trial — because they have nothing else to say.
So it was helpful on Friday when, in a ruling that was big win for Democrats allowing them to access unseen material in Special Counsel Robert Mueller’s report, Judge Beryl Howell also thoroughly demolished the Republican attacks on the impeachment inquiry.
For example, after Mueller completed his investigation, Senate Judiciary Chair Lindsey Graham (R-SC) declared: “And as for me, the case is over. Mr. Mueller has decided to move on and let the report speak for itself. Congress should follow his lead.”
But as Howell noted:
The Special Counsel explained that bringing federal criminal charges against the President would “potentially preempt constitutional processes for addressing presidential misconduct.” Id. at II-1. With this statement, the Special Counsel signaled his view that Congress, as the federal branch of government tasked with presidential impeachment duty under the U.S. Constitution, was the appropriate body to resume where the Special Counsel left off.
Republicans have also claimed that the House is not really in an official impeachment inquiry, because there has been no vote to that effect. But Howell argued that such a vote wasn’t necessary to find that the House is engaging in an impeachment inquiry, as should be obvious.
“The Speaker of the House of Representatives has announced an official impeachment inquiry, and the House Judiciary Committee (‘HJC’), in exercising Congress’s ‘sole Power of Impeachment,'” she wrote.
Indeed, she said the argument that the House must have a full vote to be in an impeachment inquiry is “fatally flawed.”
“The precedential support cited for the ‘House resolution’ test is cherry-picked and incomplete, and more significantly, this test has no textual support in the U.S. Constitution,” she wrote.
Turning first to the arguments that stem from precedent, DOJ and Representative Collins state that the “impeachments of Presidents Clinton and Andrew Johnson were investigated in multiple phases with each phase authorized by the House’s adoption of resolutions.” … Even were this statement accurate, which it is not, the manner in which the House has chosen to conduct impeachment inquiries encompasses more than past Presidents and no sound legal or constitutional reason has been presented to distinguish the House’s exercise of impeachment authority for a President from the exercise of such authority more generally.
Federal judges, she noted have “indisputably” been the subject of impeachment investigations without a full House vote.
"Even in cases of presidential impeachment, a House resolution has never, in fact, been required to begin an impeachment inquiry,” she said, pointing, in particular, to the impeachment of President Andrew Johnson. But even for President Bill Clinton and Richard Nixon, she said, the House began impeachment investigations before actually taking a full House vote.
The White House has relied on similar arguments to those that Howell debunked in its effort to justify rejecting the impeachment inquiry as “illegitimate.” White House Counsel Pat Cipollone outlined these arguments in a fiery letter written to Congress that has been roundly criticized by legal experts.
And that letter, it seems, has now blown up in Trump’s face, as Howell found that it helps justify judicial intervention to release information that the House is seeking.
The White House’s stated policy of non-cooperation with the impeachment inquiry weighs heavily in favor of disclosure,” she wrote. “Congress’s need to access grand jury material relevant to potential impeachable conduct by a President is heightened when the Executive Branch willfully obstructs channels for accessing other relevant evidence.”
Though her ruling wasn’t meant to specifically address some other concerns Republicans have raised about the impeachment process playing out in the House, she did, in fact, touch on them, whether intentionally or not. Many Republicans have argued that there’s something improper about the fact that the House Intelligence Committee is carrying out its interviews as part of the impeachment inquiry behind closed doors and under seal. But as Howell noted in her ruling, in an impeachment proceeding, “the House performs a function somewhat akin to a grand jury.” And since grand jury proceedings are normally done in secret, it’s not a reasonable objection to Democrats’ process that the work is continuing behind closed doors.