The DOJ as the Keystone Kops

Good morning from US District Court in DC. At 10 am, House Judiciary Committee & DOJ lawyers will appear for a hearing in the Democrats’ lawsuit to get Robert Mueller’s grand jury materials as part of their impeachment inquiry. I’ll live tweet some of the proceedings. pic.twitter.com/h1YavNasL0

— Darren Samuelsohn (@dsamuelsohn) October 8, 2019

I can't cite all the tweets here (it's a long thread).  This part is quite delicious:

DOJ's Shapiro says the House keeps "shifting" in its reasons for why it needs the Mueller materials. The initial application was about obstruction and the Mueller report and McGahn. Howell cuts her off, says she may need to give "deference" to the House.

— Darren Samuelsohn (@dsamuelsohn) October 8, 2019

Shapiro says even Pelosi has given different accounts of whether the House is in an impeachment investigation.

— Darren Samuelsohn (@dsamuelsohn) October 8, 2019

Shapiro: The House needs to show "some degree of formality” that it's doing impeachment.
Howell: Agrees a vote would "make my life very much easier. But short of that what degree of formality is the department saying I need to look for?"

— Darren Samuelsohn (@dsamuelsohn) October 8, 2019

Shapiro: "We’re not advocating any specific line.”
Howell: "That is so not helpful.”

— Darren Samuelsohn (@dsamuelsohn) October 8, 2019

In other words, the DOJ's position is that the House needs to be more formal about conducting impeachment hearings, because that changes the legal analysis of what the House is entitled to review.  But the DOJ wants to keep the definition of "formal" fluid, so they can reserve the right to object to anything the House does as insufficient to establish impeachment proceedings.  (Because there are no formal rules in the Constitution as to how the House conducts an impeachment.)

Nice work, if they can get it.  Signs point to "They can't."

Howell says based on DC Circuit and SCOTUS precedent "I owe enormous deference" to how the House decides it's in impeachment proceedings. "Am I misreading those cases?" she asks.

— Darren Samuelsohn (@dsamuelsohn) October 8, 2019

And that's a key issue:  the courts are not gonna step on the House rules, because the Constitution specifically gives the House power to set its own rules, and because the House can de-fund the courts or even impeach judges who decide the House works the way the Courts decide they work.  Co-equal branches of government, in other words, don't mess in each others business, not without distinct authority to do so.  Deciding the legitimacy of the House rules on impeachment is not something the courts have distinct authority to do, and they won't.  "Deference," is the legal term.