Trump impeachment inquiry is legal, judge rules

Congress can view grand jury documents gathered by Mueller

WASHINGTON >> A federal judge handed a victory to House Democrats on Friday when she ruled that they were legally engaged in an impeachment inquiry, a decision that undercut President Donald Trump’s arguments that the investigation is a sham.

The declaration came in a 75page opinion by Chief Judge Beryl A. Howell of the Federal District Court in Washington. She ruled that the House Judiciary Committee was entitled to view secret grand jury evidence gathered by the special counsel, Robert Mueller.

Typically, Congress has no right to view such evidence. But in 1974, the courts permitted lawmakers to see such materials as they weighed whether to impeach President Richard M. Nixon. The House is now immersed in the same process focused on Trump, Howell ruled, and that easily outweighs any need to keep the information secret from lawmakers.

And in a rebuke to the Trump administration, she wrote that the White House strategy to stonewall the House had actually strengthened lawmakers’ case. She cited Trump’s vow to fight “all” congressional subpoenas and an extraordinary directive by his White House counsel, Pat Cipollone, that executive branch officials should not provide testimony or documents to impeachment investigators.

“The White House’s stated policy of noncooperation with the impeachment inquiry weighs heavily in favor of disclosure,” Howell 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.”

The administration is likely to appeal the ruling; the Justice Department was reviewing it, a spokeswoman said. It came on a day when House investigators unleashed another round of subpoenas. They demanded that the acting chief of the White House budget office and two other administration officials testify next month in their inquiry into Trump’s pressure campaign on Ukraine to open investigations that could benefit him politically.

Democrats praised Howell’s decision. Rep. Jerrold Nadler of New York, the chairman of the Judiciary Committee, applauded the “thoughtful ruling” and its recognition that “our impeachment inquiry fully comports with the Constitution.”

“This grand jury information that the administration has tried to block the House from seeing will be critical to our work,” Nadler said in a statement.

In arguing that the impeachment inquiry is a sham, Republicans have noted that the full House has not voted for a resolution to authorize one, as it did in 1974 and 1998 at the start of impeachment proceedings targeting Nixon and President Bill Clinton.

Democrats have countered that no resolution is required under the Constitution or House rules and pointed out that impeachment efforts to remove other officials, like judges, started without such a vote.

Howell agreed with the Democrats, calling the Republican arguments “cherry-picked and incomplete” and lacking support from the Constitution, House rules or court precedents.

“Even in cases of presidential impeachment, a House resolution has never, in fact, been required to begin an impeachment inquiry,” wrote Howell, an appointee of President Barack Obama.

Though the impeachment inquiry has broadened to focus on investigating the Ukraine scandal that erupted last month,

the dispute before Howell arose from an earlier stage: the aftermath of the Mueller investigation.

After Mueller completed his report about the Russia investigation and Trump’s efforts as president to obstruct it, Attorney General William Barr turned over most of the report to Congress. But he censored portions that contained material that is secret under grand jury rules.

Lawmakers demanded to see that text, as well as underlying documents and transcripts of testimony by witnesses who appeared before a grand jury. In July, they filed a petition asking Howell to order the Justice Department to provide that information under the Watergate precedent.

In its legal filings, the House Judiciary Committee asserted that it was already conducting an inquiry into whether Trump should be impeached. At the time, Speaker Nancy Pelosi, DSan Francisco, was seen as reluctant to put forward a resolution formally authorizing such an inquiry, to avoid jeopardizing newly elected Democrats who won seats in moderate districts in the 2018 midterm elections.

But in September, as revelations about Trump’s Ukraine dealings fueled support for an impeachment inquiry, Pelosi announced that one was underway — but stopped short of bringing a resolution to the floor. Republicans in Congress have seized upon the lack of a formal vote as the foundation for their opposition to the inquiry, focusing on process instead of the substance of the allegations against Trump.

As of Friday, all but three Senate Republicans — Sens. Lisa Murkowski of Alaska, Mitt Romney of Utah and Susan Collins of Maine — had signed onto a resolution that accused Democrats of conducting an unfair inquiry and called on the House to vote for a formal impeachment investigation.

Also on Friday, the Republican National Committee’s governing body made the unusual gesture of declaring in a symbolic resolution that it “now more than ever wholeheartedly supports” Trump in the middle of “a nakedly partisan impeachment investigation.”

Both the Trump legal team and Republicans have adopted the lack of a formal impeachment vote as a basis for their arguments that the inquiry is illegitimate — stressing it both publicly and in letters warning executive branch officials not to cooperate when Congress asks them to testify or provide documents, including Cipollone’s documents.

Some administration officials have defied that warning and testified anyway, while others have invoked the White House’s directions to refuse to cooperate with impeachment investigators.

One of the officials subpoenaed on Friday for testimony, Russell Vought, the acting director of the Office of Management and Budget, had cited Cipollone’s letter when he announced this week that he and another top Trump appointee there, Michael Duffey, would not appear before Congress. Cipollone denounced the inquiry as “constitutionally illegitimate.”

Duffey was one of the other officials who received a subpoena on Friday to submit to depositions about whether Trump’s decision to withhold nearly $400 million in military aid for Ukraine was part of a quid pro quo effort. The third was T. Ulrich Brechbuhl, a counselor at the State Department.

The new subpoenas — issued jointly by the House Intelligence, Foreign Affairs, and Oversight and Reform committees, which are leading the investigation — suggested that Democrats intended to continue the private phase of their investigation for several more weeks before convening public hearings.