Resistance (At All Costs): A case study

In her new book Kim Strassel calls it Resistance (At All Costs). You know what “it” is: the opposition to Donald Trump that has manifested itself in each branch of the government and the media since the Trump presidential campaign. From the “counterintelligence investigation” of his campaign conducted by the intelligence and law enforcement authorities of the Obama administration and related leaks to the media, to the Mueller Special Counsel investigation, to the current impeachment farce we can examine the Resistance in its various aspects.

Despite appearances, the Mueller fiasco was not a loss for the Resistance. It severely hobbled the Trump administration during its first two-plus years in office. With only a year to go before the next presidential election, it lives on in the current impeachment farce.

Strassel devotes a chapter (chapter 8, “Judicial Unrestraint”) to the judicial face of the Resistance. Think of the torrent of nationwide injunctions issued by federal judges against the Trump administration. We all know what she’s talking about.

The Mueller investigation represents the heart of the Resistance. As I say, it lives on in the current impeachment farce. Yesterday Judge Beryl Howell issued a 75-page memorandum opinion and order granting the application of the House Judiciary Committee — think Jerry Nadler — for access to the secret grand jury materials underlying the Mueller Report.

What’s it all about, Jerry? Mollie Hemingway provided a preview in the November 2018 Federalist column “Incoming Democrat Chairman: Dems Will Go ‘All-In’ On Russia, Impeach Kavanaugh For ‘Perjury.’”

Here is the electric cord linking the Mueller production to the impeachment farce: “The Special Counsel explained that bringing federal criminal charges against the President would ‘potentially preempt constitutional processes for addressing presidential misconduct’ [citation omitted]. 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.”

Thanks for clearing that up.

I learn from Judge Howell that the Speaker of the House has the power unilaterally to declare that the House is conducting an “impeachment inquiry.” I learn further that a potential impeachment trial in the Senate is a “judicial proceeding” even though it appears on its face to be a “congressional proceeding.” Judge Howell adds drily: “This purpose [i.e., a possible Senate impeachment trial] has only been confirmed by developments occurring since [the House Judiciary Committee] initially submitted its application.”

Again, thanks for clearing that up.

Well, the Federal Rules of Criminal Procedure aren’t holy writ. Perhaps Judge Howell’s approach to their construction will pass muster with the appellate judges responsible for reviewing her handiwork. In the meantime, I have embedded Judge Howell’s memorandum opinion below for illustrative purposes.

NOTE: As a practicing attorney I used to appear before then Hennepin County District Court Judge Beryl Nord (now retired), whose name I confused with Judge Howell’s in my original draft of this post. I shouldn’t have confused them. Judge Nord was a better judge than Judge Howell.

In Re Application by Scott Johnson on Scribd

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