“…Accordingly, just as a grand jury investigation is “preliminary to a possible criminal trial,” In re Grand Jury, 490 F.3d at 986, a House impeachment inquiry occurs preliminarily to a possible Senate impeachment trial…”

“….Representative Collins asserts that HJC’s investigation cannot be “preliminarily to” an impeachment trial until the full House passes a resolution authorizing a “formal impeachment proceeding.” Collins….equivocates on this proposed bright line test to meet the “preliminarily to” requirement….but seems to indicate that the House must go at least that far…. Like all bright-line rules, this “House resolution” test is appealing in terms of being easy to apply. Yet, the reasoning supporting this proposed test 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, the governing rules of the House, or Rule 6(e), as interpreted in binding decisions….”

“…the Special Counsel “accepted” the DOJ Office of Legal Counsel’s (“OLC”) legal conclusion that “‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’” [….] This OLC legal conclusion has never been adopted, sanctioned, or in any way approved by a court…”

Earlier this week, boilerplate:

Rep. Vicky Hartzler @RepHartzler
Rather than delivering results for hardworking Americans, House Democrats have chosen to hide behind closed-door impeachment inquiries guided by a corrupt process.

I’m committed to working with @realDonaldTrump to deliver real results for all Missourians and all Americans.
[….]
10:45 AM · Oct 23, 2019

Yep, she wrote “corrupt process”.

Yesterday:

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

In re APPLICATION OF THE COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES, FOR AN ORDER AUTHORIZING THE RELEASE OF CERTAIN GRAND JURY MATERIALS

Grand Jury Action No. 19-48 (BAH)
Chief Judge Beryl A. Howell

MEMORANDUM OPINION GRANTING THE APPLICATION OF THE COMMITTEE ON THE JUDICIARY, U.S. HOUSE OF REPRESENTATIVES [pdf]

…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.

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,” U.S. CONST. art. I, § 2, cl. 5, is reviewing the evidence set out in the Mueller Report. As part of this due diligence, HJC is gathering and assessing all relevant evidence, but one critical subset of information is currently off limits to HJC: information in and underlying the Mueller Report that was presented to a grand jury and withheld from Congress by the Attorney General.

The Department of Justice (“DOJ”) claims that existing law bars disclosure to the Congress of grand jury information. See DOJ’s Resp. to App. of HJC for an Order Authorizing Release of Certain Grand Jury Materials (“DOJ Resp.”), ECF No. 20. DOJ is wrong. In carrying out the weighty constitutional duty of determining whether impeachment of the President is warranted, Congress need not redo the nearly two years of effort spent on the Special Counsel’s investigation, nor risk being misled by witnesses, who may have provided information to the grand jury and the Special Counsel that varies from what they tell HJC. As explained in more detail below, HJC’s application for an order authorizing the release to HJC of certain grand jury materials related to the Special Counsel investigation is granted….

….“Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations,” the Special Counsel “accepted” the DOJ Office of Legal Counsel’s (“OLC”) legal conclusion that “‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’” Id. at II-1 (citation omitted) (quoting OLC Op. at 13 222, 260). This OLC legal conclusion has never been adopted, sanctioned, or in any way approved by a court.

At the same time, impeachment factored into this analysis, as the Special Counsel also concluded “that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office [which] accords with our constitutional system of checks and balances and the principle that no person is above the law.”….

….DOJ flatly states that no congressional proceeding can constitute a Rule 6(e) “judicial proceeding” because “[t]he Constitution carefully separates congressional impeachment proceedings from criminal judicial proceedings.” DOJ Resp. at 15. This stance, in service of the obvious goal of blocking Congress from accessing grand jury material for any purpose, overlooks that an impeachment trial is an exercise of judicial power provided outside Article III and delegated to Congress in Article I.21 Contrary to DOJ’s position—and as historical practice, the Federalist Papers, the text of the Constitution, and Supreme Court precedent all make clear—impeachment trials are judicial in nature and constitute judicial proceedings….

….Most troubling, DOJ’s proposed reading of “judicial proceeding” raises constitutional concerns. DOJ policy is that a sitting President cannot be indicted, OLC Op., which policy prompted the Special Counsel to abstain from “mak[ing] a traditional prosecutorial judgment” or otherwise “draw[ing] ultimate conclusions about the President’s conduct.” Mueller Report at II 8. This leaves the House as the only federal body that can act on allegations of presidential misconduct. Yet, under DOJ’s reading of Rule 6(e), the Executive Branch would be empowered to wall off any evidence of presidential misconduct from the House by placing that evidence before a grand jury. Rule 6(e) must not be read to impede the House from exercising its “sole Power of Impeachment.”….

….Accordingly, just as a grand jury investigation is “preliminary to a possible criminal trial,” In re Grand Jury, 490 F.3d at 986, a House impeachment inquiry occurs preliminarily to a possible Senate impeachment trial….

….Representative Collins asserts that HJC’s investigation cannot be “preliminarily to” an impeachment trial until the full House passes a resolution authorizing a “formal impeachment proceeding.” Collins Mem. at 1. DOJ equivocates on this proposed bright line test to meet the “preliminarily to” requirement, Hr’g Tr. at 69:10–11, but seems to indicate that the House must go at least that far, see DOJ Resp. at 28. Like all bright-line rules, this “House resolution” test is appealing in terms of being easy to apply. Yet, the reasoning supporting this proposed test 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, the governing rules of the House, or Rule 6(e), as interpreted in binding decisions….

….Formulating a firm line on when, in the impeachment context, activities within the House meet the “preliminarily to” requirement to qualify for disclosure of grand jury material need not be drawn here, since this case is clear. Collectively, the record shows an evolving and deliberate investigation by HJC that has become focused on determining whether to impeach the President and thus has crossed the “preliminarily to” threshold….

….For the foregoing reasons, HJC’s application is granted. Consequently, DOJ is ordered to provide promptly, by October 30, 2019, to HJC all portions of the Mueller Report that were redacted pursuant to Rule 6(e) and any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e). HJC is permitted to file further requests articulating its particularized need for additional grand jury information requested in the initial application….

Don’t you just hate it when a Federal judge issues a comprehensive opinion that makes you look like a blithering fool two days after you post party hack boilerplate on social media?

Previously:

Impeachment: Consciousness of Guilt (September 24, 2019)

Impeachment: Rep. Emanuel Cleaver (D) (September 24, 2019)

Rep. Vicky Hartzler (r): gaslighting (September 24, 2019)

Impeachment: Speaker Nancy Pelosi (D) – “Tell your people to obey the law.” (September 25, 2019)

Impeachment: the smell of fear (September 25, 2019)

Impeachment: It became self aware at 6:24 a.m., September 26, 2019… (September 26, 2019)

Impeachment: NPR/PBS NewsHour Marist Poll – September 25, 2019 (September 26, 2019)

Flop sweat (September 27, 2019)

Impeachment: this morning’s “Executive Time” (September 28, 2019)

Impeachment: unhinged (September 29, 2019)

Hillary Clinton (D) is living rent free inside of Donald Trump’s (r) head (September 29, 2019)

Going 0-2 (September 30, 2019)

Impeachment: almost too stupid to remember to breathe (October 1, 2019)

Hillary Clinton (D) is having fun these days (October 1, 2019)

Impeachment: in a panic (October 2, 2019)

Rep. Vicky Hartzler (r): clap louder (October 3, 2019)

Impeachment: why we can’t have nice things (October 4, 2019)

Impeachment: “…and getting caught in Ukraine…” (October 5, 2019)

Sen. Roy Blunt (r): see nothing, hear nothing, know nothing (October 6, 2019)

Impeachment: Putin’s Puppet (October 7, 2019)

Rep. Vicky Hartzler (r): well, that was a turkey (October 7, 2019)

Impeachment: Not very bright, is he? (October 9, 2019)

Rep. Vicky Hartzler (r): Benghazi! (October 9, 2019)

Campaign Finance: “Do you like subpoena coladas and getting caught in Ukraine?” (October 10, 2019)

Gov. Mike Parson (r) and Sen. Roy Blunt (r): owning it (October 10, 2019)

Impeachment: that was then, this is now (October 12, 2019)

Rep. Vicky Hartzler (r): Did you ask Donald Trump (r) and Mick Mulvaney (r) about that “vital” aid? (October 19, 2019)

Rep. Vicky Hartzler (r): having difficulty understanding basic concepts (October 23, 2019)

Rep. Vicky Hartzler (r): While you’re at it, a few questions… (October 23, 2019)

Rep. Vicky Hartzler (r): voting for rules in 2017, breaking them in 2019 (October 24, 2019)