The Legal Brief on CNN for 7/27/19

Attorney Page Pate appears on CNN New Day Saturday for The Legal Brief – a rundown of the week’s top legal news. In this edition, Page discusses the new lawsuit being filed by the House Judiciary Committee seeking grand jury transcripts in the Mueller Investigation, and the announcement by Attorney General Bill Barr that the federal government will start a new execution protocol and resume federal executions later this year.


Jessica: And some legal stories we’re following for this week’s legal brief. The impeachment effort is growing. There are now at least 101 House Democrats calling for an impeachment inquiry into the President. And now, the House Judiciary Committee is seeking the grand jury information behind Special Counsel Robert Mueller’s report with a lawsuit.

The Judiciary Charmain, Jerry Nadler, says he needs that information in order to move forward with an impeachment recommendation. The move is the first step in a lengthy and, very likely, divisive process. And joining us now is federal and constitutional attorney Page Pate. Good morning to you, Page.

Page: Good morning, Jessica.

Jessica: So, Nancy Pelosi says she wants all the information before they can make a decision on impeachment. Take a listen to what she said.

Nancy: No, I’m not trying to run out the clock. Let’s get sophisticated about this. Okay? Okay?

Reporter: But how long do think this process will take?

Nancy: We will proceed when we have what we need to proceed, not one day sooner. Their advocacy for impeachment only gives me leverage. I have no complaint with what they are doing. I’m willing to take whatever there is there to say, when we… The decision will be made in a timely fashion. This isn’t endless.

Jessica: So, much to the chagrin of some of the more liberal members of her party, she wants to go through this process methodically, leaning on the courts to first get this information for their investigation. Do you see that as an effective use of the courts by Democrats?

Page: Well, Jessica, I’m not sure that a judge will see it that way. Because the only way that the House Democrats can get access to this grand jury material is to first convince a district judge in Washington that they are in a judicial proceeding or about to be in a judicial proceeding. So, the more they hedge about whether or not they’re in an actual impeachment inquiry, the less likely it is they’re gonna get the material that they say that they need.

Jessica: Mm, that’s very interesting. And in addition to that, the next thing that Democrats plan to do is file a lawsuit, another lawsuit, to enforce the subpoena of Don McGahn, former White House Counsel who refused the Committee’s subpoena at the direction of the White House. So, you’re saying, you know, what they’re gonna have to prove in this first lawsuit. What are the chances of this one being successful?

Page: I think they have a better chance, actually, of getting Don McGahn under subpoena and requiring him to testify, as to some things. I do think there’s a legitimate claim of privilege, perhaps executive privilege, as to some of the information that he may be able to provide the Committee. But it’s not absolute privilege, as the President has said before.

So I think, in connection with that lawsuit, which we expect to be filed at some point next week, a judge will parse through the information that the Committee wants and likely require Mr. McGahn to answer some of those questions. And maybe that information will get Congress to the point where they can formally say, “We are now in an impeachment inquiry.” Because I think they have to say that if they want access to the other grand jury material.

Jessica: Mm, may have been hesitant to say that formally.

Page: Very much.

Jessica: All right, let’s move on to the next story. The federal government’s announcement that it plans to resume executing death row inmates for the first time since 2003. Attorney General Bill Barr ordering the execution of five men on death row, starting in December. That could be delayed by legal challenges. We know there are currently 62 inmates in federal death row.

And, Page, I wanna get your thoughts on this. What kinds of process does the Justice Department have to go through? I mean, can they just say they wanna do this and make it happen, or how is this all gonna play out?

Page: No, it is a lot more complicated than the Attorney General is making it sound. I mean, first, they actually have to change the protocol. And to do that, you have to go through a process. You don’t just sign a press release and say, “Okay, it’s on now. We’re gonna start executions again.” You have to establish a protocol. What type of drug are you going to use? How is it going to be administered? And all of that has to be approved. They haven’t done that yet.

And we also expect that once this protocol is put into place, you’re gonna see more legal challenges from the people that are facing execution. And that is almost certain to delay it at least until sometime next year. And then, there’s the availability of the execution drug. That has been an issue in several states. And we don’t know where the federal government intends to get this drug or how they have to get it produced.

Jessica: Yeah, a lengthy and complicated process there. Page Pate, thanks so much for being with us this morning.

Page: Thank you, Jessica.