Last week we outlined the likely schedule for all of the rapidly surfacing DC issues to include: (A) Pelosi and Schiff’s impeachment effort; (B) the IG FISA abuse report being released; and (C) the narrowing timeline of court decisions for all three of Pelosi’s impeachment committees.
Today we have some new background to help see the narrative race and legal race. Pelosi and Schiff are not only racing the impeachment vote against the IG report, they are also racing against the Judicial branch wiping out all prior “impeachment inquiry” validity.
Effective at the end of business today the House is now in recess for the Thanksgiving holiday. CNN is reporting:
The House returns on December 3rd and recesses again for Christmas break on December 12th. That is the window for Pelosi to cram in all of the House needs; eight days.
Remember, the House Democrats punted the budget with a short term CR so that has to get done. We were hopeful Pelosi would put the USMCA ratification up for a vote; however, that now appears to be off the table until 2020. So the budget and impeachment vote are inside this eight day window.
But that is not all that is inside this window.
On December 9th the IG report on FISA abuse and DOJ/FBI corruption will be released. On December 11th Michael Horowitz will testify before the Senate Judiciary Committee.
So there are two races.
♦ One race within the Trump impeachment is for the narrative: Trump Impeachment -vs- DOJ/FISA corruption against Trump. This is the race everyone is discussing.
♦ The second race within the Trump impeachment is legal: Pelosi, Schiff and ultimately Nadler -vs- the Judicial branch. This is the race few are watching, but actually could be far more consequential because it could invalidate the entire HPSCI process.
The aforementioned mid-December House Impeachment Vote is not a vote to impeach President Trump. It is a vote at the end of their “inquiry”; and a vote to authorize the House Judiciary Committee to begin their “official” impeachment hearings.
The mid-December vote will be to authorize the House Judiciary Committee to begin the “official” impeachment hearings. Nancy Pelosi and Adam Schiff need this vote fast; they need this vote before they lose any court case that could make the “impeachment inquiry” invalid.
Additionally, Nancy Pelosi and House Judiciary Committee Chairman Jerry Nadler need this full House authorization vote to gain the authority to penetrate the constitutional firewall that protects the separation of power in the “official” impeachment investigation. And they are hoping that any loss in the three pending cases will not undermine the validity of the prior impeachment inquiry…. that’s an issue.
That’s why Pelosi, Schiff and Nadler need to get that mid-December House vote before they lose any SCOTUS ruling. There are three cases, each of them appears heading to the Supreme Court; one is already there.
♦The first case is the House Oversight Committee effort to gain President Trumps’ tax returns as part of their impeachment ‘inquiry’ and oversight. That case is currently on-hold (10-day stay) in the Supreme Court; outcome pending. There is a very strong probability Pelosi will lose this case because Oversight doesn’t have jurisdiction and the case began back in February.
Chief Justice John G. Roberts, Jr. granted the administration’s request to stay the federal appeals court ruling against Mr. Trump until “further order” — for now — as the high court decides whether or not to hear the president’s challenge.
[…] Douglas Letter, general counsel for the House Committee on Oversight and Reform, had sent a letter to the court, agreeing to a brief 10-day stay while the parties filed their court papers debating the need for an injunction while the case is being considered. (link)
Probability of loss to Pelosi 90%.
♦The second case is the House Judiciary Committee (HJC) effort to gain the grand jury information from the Mueller investigation. The decision by DC Judge Beryl Howell was stayed by a three member DC Appellate court. Oral arguments were November 12th, the decision is pending. [Depending on outcome, the case
could will also go to SCOTUS]
[…] the appeals court in a brief order said it would not immediately release the documents “pending further order of the court.” The court also asked the House and the Justice Department for more briefings and set a Jan. 3 date for another hearing. (link)
Probability of SCOTUS 100% – Probability of loss to Pelosi 80%
♦The third case is the HJC effort to force the testimony of former White House legal counsel Don McGahn. Issue: subpoena validity. The HJC has asked for an expedited ruling. Judge Ketanji Brown Jackson has announced she will deliver her ruling on Monday November 25th.
The House’s letter to federal Judge Ketanji Brown Jackson in Washington points out that it is considering impeaching Trump for obstruction of justice, for which McGahn would be a key witness since he spoke to special counsel Robert Mueller for the obstruction investigation, and for lying to Mueller, after testimony at Roger Stone’s criminal trial raised questions about Trump’s written answers to investigators about Russian interference in the 2016 election. (link)
Probability Appeal 100% – Probability SCOTUS 90% – Probability of loss 50%
Pelosi, Schiff, Nadler and Lawfare are hoping a full House vote to authorize impeachment will help them retroactively in any judicial decision (court, appeals or SCOTUS). The only case where that seems possible is the last one; and that has a long way to reach SCOTUS.
Remember, the Supreme Court has not yet ruled on any ancillary case that touches upon the validity of the unilaterally declared House impeachment process. The Supreme Court has not ruled on any case that touches the impeachment “inquiry”.
The issue at stake is whether the legislative branch can penetrate the constitutional firewall which exists within the separation of powers.
If the House loses the Tax case in SCOTUS (likely), and/or either HJC case in appeals or SCOTUS it will mean there was no constitutional foundation for the “impeachment inquiry”, and the committee approach therein.
Without the constitutional recognition of the judicial branch Pelosi and Schiff’s HPSCI status as a constitutional impeachment process would be fatally flawed. The product from all of that effort could be considered invalid; and possibly the Senate could ignore any House impeachment vote that uses invalid evidence gathered in the fatally flawed process.
This is why Pelosi and Schiff are racing the court for their legal foundation; and simultaneously facing the IG FISA report release for their narrative foundation.