Impeachment in The Courts – HJC vs DOJ Appellate Arguments Scheduled for November 12th…

There is an important granular aspect to the validity of the House impeachment process that few are paying attention to.  If the HJC loses this case in the DC Appellate Court, it means there is no constitutional foundation recognized to the “impeachment inquiry.”

Without the constitutional recognition of the judicial branch then: (a) Pelosi/Lawfare have to restart the process with a genuine House vote; or (b) the ongoing impeachment process will have no recognized constitutional standing; and (c) the Senate could ignore any House impeachment vote, cast without recognized constitutional standing.

BACKSTORY: On October 25th DC Judge Beryl Howell granted the House Judiciary Committee (HJC) request for legal authority to receive 6e grand jury material underlying the Mueller report.

Additionally, and most importantly, within the Howell decision she officially recognized the HJC effort was predicated on a constitutional impeachment process.  In essence Howell’s opinion granted the HJC with “judicial enforcement authority.”

The DOJ moved to appeal the decision and requested a “stay” pending appeal.  Judge Howell rejected the DOJ “stay” motion.

The DOJ then appealed to the DC Court of Appeals.  A panel of three judges issued an “administrative stay”, blocking enforcement of the Howell ruling while the appeal was reviewed.  The DC Appellate Court has now scheduled the arguments within the appeal.

Right now; and considering the House voted on a ‘resolution’ to support Nancy Pelosi’s unilaterally decreed “impeachment inquiry”; and due to the lack of structural specifics within the constitution surrounding the impeachment process; I would put the odds at 50/50 the House Judiciary Committee could win this case.

It is critical that AG Bill Barr sends his best constitutional lawyers to defend the interests of the executive branch in this appeal.  The DOJ has a solid constitutional argument to make; and if they end up losing the decision the verbal arguments will be a key factor in whether the Supreme Court would take up the issue (after en banc appeal exhausted).

The HJC objective is simple.  They seek judicial enforcement authority for their subpoenas so their targets cannot legally refuse to give testimony; and by extension the constitutional premise of the House process is affirmed.

The premise for both fronts: (1) document subpoena 6e material, and (2) testimony from White House Counsel Don McGahn, is predicated on penetrating a constitutional firewall that exists within the separation of powers.

Under existing SCOTUS precedent, the White House can be compelled to deliver Executive Branch documents and testimony so long as an official legislative branch impeachment process is underway.

Judge Beryl Howell was the first person in the judicial branch to recognize and accept the HJC position that such an official impeachment process was ongoing.  At the heart of this appeal is that recognition.

If the DOJ can successfully argue the House has not followed the traditional and constitutional process that authorizes impeachment investigation; and allows the HJC to penetrate the separation of power firewall; it will be a major blow to the Lawfare scheme.

A ruling in favor of the DOJ would invalidate the narrative of the House.

A ruling in favor of the DOJ would also allow the Senate to dismiss any results from Schiff and Nadler’s investigation, because their process would not be predicated on constitutional provisions for impeachment.

In short, this is a pretty important ruling.

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This entry was posted in AG Bill Barr, Big Government, Big Stupid Government, Deep State, Dept Of Justice, Impeachment, Legislation, media bias, Nancy Pelosi, President Trump, Supreme Court, Uncategorized, USA. Bookmark the permalink.

245 Responses to Impeachment in The Courts – HJC vs DOJ Appellate Arguments Scheduled for November 12th…

  1. DebbieSemms says:

    I have to disagree with Sundance on this one. The 3 judge panel is all Obama appointees,
    I put the chances of a win at 25%,,,,the fix ix is in.

    Liked by 3 people

    • bertdilbert says:

      Yes but that is why Sundance stresses the importance of the arguments so that it will have a good chance of going to the supreme court if it fails at this level.

      Liked by 2 people

    • Guy Jackson says:

      Hmmm. Hi DebbiSemms. Methinks your statement should be checked – Rogers was appointed by Ronald Reagan, Griffith was appointed by George W. Bush, and Rao was appointed by Donald Trump. Care to re-calculate your probabilities? I can’t imagine. A more fair panel of arbiters.

      Liked by 2 people

    • If the 3 judge panel is all Obama appointees, the chances of a win are ZERO.

      I don’t know if they can appeal to SCOTUS, or if SCOTUS would take it, but it seems to me we’re at the point where this is EXACTLY the kind of thing SCOTUS is for: what does “the House” MEAN? Nancy Pelosi? Or the entire House? What does “impeachment” mean? An “inquiry”? Or ARTICLES OF IMPEACHMENT? It’s hard for me to believe SCOTUS would deem this a legit impeachment if asked to test it. If they do, well, all is lost. Every president will be immediately impeached upon assuming Office w/an opposition party House.

      Liked by 2 people

      • Artful Zombie says:

        The thing that is bothering me is why don’t conservatives EVER find a conservative judge to overturn those obamma judges rulings as unconstitutional judicial over reach.
        Why is it ALWAYS only the leftists and their leftist judges practicing the lawfare to stop constitutional rulings by President Trump with no push back.
        Where is the AG?
        Isn’t foreign policy determined by the President?
        Doesn’t the President command the armed forces and if it is warranted, to protect our sovereign borders from foreign invasion?

        Liked by 2 people

        • jbowen82 says:

          During the Obama Administration a single federal judge in Texas blocked DAPA and “Enhanced DACA.” Another federal judge has ruled that Obamacare is void now that the individual mandate “tax” isn’t part of it (that ruling is being appealed). We do win some.

          Liked by 1 person

      • LumpyGravey says:

        I agree wholeheartedly. Very strict attention to separation of powers must be codified in the decision or like you said, A precedent will be set to wreak havoc on our system of government whereby any opposing party will impeach their political rivals.

        Like

        • El Cid says:

          I think the constitution gives the House the right to use whatever rules they please. Nothing is said about ethics. Abandoning ethics leads us down the path to tyranny. This is the path the Democrats have chosen.

          Hopefully, the Senate will stop it, and when they do, explicitly identify the reason why for posterity.

          Like

    • Right now those 3 judges are holding a “Rock-Paper-Scissors” tournament to decide WHICH one of them will vote in favor of the DoJ’s position, so that the pre-planned Coup can cloak itself with a false veneer of apolitical propriety.

      Magic 8-Ball sez:

      ZERO chance the House Dems lose at this stage of the battle.

      It will go to SCOTUS where Chief Justice Roberts will drive the blade hilt-deep into the Constitution’s heart.

      Like

    • It literally doesn’t matter how that particular panel rules; it doesn’t matter that the current judge “recognized” the legitimacy of the Democrat impeachment. The facts are plain as day, and the judges are ruling against those facts, so the system is broken, irreparably with them “in power”. There is no legitimate legal process going on. It is only a matter of how far the people let this monumental empowerment of insanity go on.

      Liked by 2 people

    • Dixie T says:

      Um . . . NO, they are not all Obama appointees! Look them up—-they were all appointed by 3 different Republican Presidents!

      Like

    • Susan Bolle says:

      True but allowing the law making branch to infiltrate the judiciary branch is typically frowned upon. Each one protects their unique position within the Republic.

      Like

  2. The Raven says:

    Are the Dems in the House after something else here? Are they trying to get ahead of the Barr investigation by nullifying some testimony?

    Liked by 2 people

  3. Mike in a Truck says:

    Enough of this rot. PDJT should send the U.S. Marshall’s to arrest all these coup plotters. We turned into a Banana Republic a long time ago so this is how it’s done.

    Liked by 2 people

  4. tommylotto says:

    The problem with the open ended impeachment inquiry is that it is an investigation in search of a high crime or misdemeanor. For a Congressional impeachment inquiry to be able to pierce the important Constitutional safeguard of Executive Privilege it cannot be just an unfocused investigation. It must be a focused investigation of a specific high crime or misdemeanor, and the discovery needs to relevant to the subject matter of the alleged high crime or misdemeanor. So, to prevail before the courts, Congress will need to be specific about what it is investigating and why the discovery may lead to an impeachable offense. I think this might give the Executive Branch lawyers an opportunity to challenge in a judicial setting whether the allegations in question give rise to a possible impeachable offense.

    The Ukraine call is a case in point. The allegations seem to be an effort to politicize policy differences. Trump asked Ukraine to get to the bottom of Burisma/Biden, not because our country needs to know if the prior administration was involved in corruption, but because Trump wanted information that might help him in 2020. Think about what they are saying. If you take a policy position not for the benefit of the country, but rather for your own electoral benefit, you are guilty of abuse of power and have committed an impeachable offense. This is absurd. Politicians always take policy positions for their own electoral benefit. That is a feature of democracy, not a bug. To accept this premise, you could just as easily argue that Trump okayed the al-Baghdadi raid for his own electoral benefit as opposed to national security. Or Trump refused to attack Iran after the drone strike in Saudi Arabia for his own electoral benefit as opposed to national security. So, not going to war when the industrial war complex wants to can be an impeachable offense.

    What I am saying is that the Judicial Branch should have the authority to determine if the Congressional investigation is properly predicated, and if not deny Congress judicial enforcement authority.

    Liked by 9 people

    • YeahYouRight says:

      Tommylotto, you should argue this case! Your arguments are far more persuasive than whomever DOJ sent for the first hearing. : )

      Liked by 2 people

    • WRB says:

      Nice write-up, except you use the phrase high crime or misdemeanor

      The constitution actually says high crimes and misdemeanors. Specifically
      “…Conviction of treason, bribery or other high crimes and misdemeanors.” In other words, a “high crime” must exist, not frivolous acts, nor “whatever the House thinks is impeachable.”

      Liked by 4 people

    • B to the Ryzzo says:

      Wells stated. I worry that Trump’s legal defense is flawed and giving him bad information though. He keeps harping on “no quid pro quo”, when the reality is A) there was quid pro quo; and B) quid pro quo is standard operating procedure in foreign affairs/negotiations. The defense should be about intent and intent is VERY difficult to prove.

      Also, small point, but I don’t think Trump was thinking about 2020, I think he was thinking about 2016.

      Liked by 1 person

      • ms doodlebug says:

        There was quid pro quo in the phone conversation? Where? President Zelensky was not promised anything in return for investigations of either the DNC server or in the bit of conversation about Biden and son. There is nothing to indicate aid was being withheld until the Biden’s were investigated. The aid was, in fact, in the process of being released. At any rate, PDJT took an oath that he’s keeping, unlike the democrats who also took an oath.

        The only quid pro quo in this story was Biden telling Ukrainian officials to fire their prosecutor or they weren’t getting US taxpayers’ money.

        Like

    • cazzograndissimo says:

      Good comment. Add to that is the facts that Biden is NOT the Dims nominee and if he were to become the nominee Trump would whup him with half his brain tied behind his back. Biden would be a DREAM candidate – for the REPUBLICANS

      Liked by 1 person

    • andrewlbc says:

      I don’t think this can be solved by any agency of the Federal Government. The Republican states Attorneys Generals should be drafting charges to be filed under RICO. What is going on in Washington can easily be considered a criminal enterprise, though i’d rather chalk them up as traitors attempting to overthrow our Government from within. And we all know what the penalty for that crime is.

      Liked by 1 person

    • ms doodlebug says:

      Since they started with the impeachment bull before PDJT was even inaugurated, their predicate has been loud and clear, “We lost the election. We want to overturn the election results of the constitutionally elected President of the United States.”

      Liked by 1 person

  5. Ausonius says:

    Stalin’s Secret Police chief Lavrenty Beria supposedly once said: “Show the man and I will find his crime for you.”

    This is precisely what the DEMS are doing: find me the quote, and I will find a way to twist it into a crime. Find me the e-mail, and I will distort the context into something vaguely criminal. Find me whatever, and I will claim that it is illegal and prosecute!

    Welcome to the U.S.S.A.

    See also:

    https://www.cato.org/policy-report/januaryfebruary-2010/criminalization-almost-everything

    Liked by 3 people

  6. Brian says:

    If the House prevails and the House Judiciary Committee is granted judicial enforcement authority the Senate Judiciary Committee is similarly granted judicial enforcement authority.

    Can you say Hunter Biden?

    Liked by 2 people

    • ms doodlebug says:

      It might be enlightening to hear from John Kerry’s step-son why he cut ties with Hunter right after Hunter joined the Burisma board. And Hunter’s business partner, Devon Archer, is reportedly on trial for a ponzi scheme of some kind. He might be able to provide a little insight, too.

      Like

  7. Padric says:

    It would behoove the president’s personal attorney’s to file an Amicus Brief on this as well, with the arguments that since the House has constructed their impeachment the way they have and not allowing the president’s personal counsel in the hearings as has always happened in the past, they are denying him his due process rights. From what I’ve seen in the past courts usually, though by no means always, don’t allow them. In a case such as this, however, I can’t see them turning it down.

    By allowing the Amicus Brief it extends the arguments beyond just “tradition” and “House rules” and into the arena of Constitutional rights infringement, giving the DoJ a broader, meatier and substantial argument upon which they can dovetail their own. If this court or SCOTUS ultimately decide in their favor, it also provides an easily understandable constitutional argument to sell to the public.

    Liked by 3 people

  8. Pegon Zellschmidt says:

    Obama has pictures.

    Like

  9. jbowen82 says:

    My guess is that since the Constitution explicitly states that each House shall make its own rules, that’s the end of it. The Judiciary can’t intervene. However, grand jury testimony belongs to the court under which the grand jury was convened. The judge can do whatever he (or she, in this case) wants with it. We lose this case.

    That being said, if articles of impeachment are the result of a process in the House of Representatives that denies due process to the President, then nothing prevents the Senate from making a rule rejecting such articles.

    Liked by 1 person

  10. 2Alpha says:

    Sitting here… reading… polishing my pitchfork… wrapping several torches… waiting…

    Liked by 1 person

  11. Atomic Hillbilly says:

    The dumbocrats and their coupeachment are illegitimate.

    Even if they succeed with their farce, I will still recognize Trump as the duly elected president.

    All he has to do is snap his fingers and I will muster.

    Liked by 1 person

  12. Pingback: The Four C’s Of The Impeachment Sham — Constitution, Corruption, Comity & Coup (by Wolf Howling) - Watcher of Weasels

  13. David Farrar says:

    As the WaPo correctly pointed out, this case isn’t about the “Impeachment Inquiry,” at all, but access to Mueller’s grand jury material. The case about subpoenas is a different one, and the final hearing won’t be held until Dec. 10th.

    Like

  14. JCscuba says:

    Beautifully written as always, taking it to my site, will link back, thank you. J.C.

    Like

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