This decision (full pdf below) was easily predicted for the past several weeks. The HJC -vs- White House case for McGahn testimony will be appealed and join the HJC -vs- White House case surrounding grand jury information in the DC appellate court.
WASHINGTON — A federal judge ruled late Monday that former White House counsel Don McGahn must obey a subpoena for his testimony issued by the House Judiciary Committee.
Federal District Court Judge Ketanji Brown Jackson [pictured right] said McGahn must appear before Congress but retains the ability to “invoke executive privilege where appropriate” during his appearance. The judge did not put her own ruling on hold, but the Trump administration will likely seek one to put the effect of her ruling on hold while it pursues an appeal. (link)
Nancy Pelosi and House Judiciary Committee Chairman Jerry Nadler need a full House impeachment authorization vote to try and overcome the current obstacles they are facing. The authority for the House Judiciary Committee (HJC) to penetrate the constitutional firewall that protects the separation of power in the main issue; but there are other structural/legal issues that also exist.
Any loss in three currently pending cases will undermine the validity of the prior impeachment inquiry…. that’s obviously an issue. 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. Written briefs soon, arguments perhaps in early December? 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%
♦ The third case is the HJC effort to force the testimony of former White House legal counsel Don McGahn. Issue: subpoena validity. The HJC asked for an expedited ruling. Judge Ketanji Brown Jackson delivered her ruling November 25th.:
Federal District Court Judge Ketanji Brown Jackson said McGahn must appear before Congress but retains the ability to “invoke executive privilege where appropriate” during his appearance. The judge did not put her own ruling on hold, but the Trump administration will likely seek one to put the effect of her ruling on hold while it pursues an appeal. (link)
Probability Appeal 100% – Probability SCOTUS 90%
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” upon which they have built their legal arguments.
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.
Pelosi and Schiff are racing the SCOTUS for their legal foundation; and simultaneously facing the IG FISA report release which will likely challenge the foundation of their narrative.