DOJ Position And Trump Impeachment Argument ‘Cannot Be Reconciled,’ House Lawyer Argues

UNITED STATES - JANUARY 27: Kenneth Starr, left, a member of President Donbald Trumps impeachment legal team, arrives in the Capitol for the start of the Senate impeachment trial proceedings on Monday, Jan. 27, 2020.... UNITED STATES - JANUARY 27: Kenneth Starr, left, a member of President Donbald Trumps impeachment legal team, arrives in the Capitol for the start of the Senate impeachment trial proceedings on Monday, Jan. 27, 2020. Starr was the independent counsel whose investigation helped lead to the impeachment of President Bill Clinton. (Photo By Bill Clark/CQ-Roll Call, Inc via Getty Images) MORE LESS
January 28, 2020 2:01 p.m.

The President just keeps contradicting his own DOJ, the House of Representatives’ top lawyer said in yet another court filing Tuesday pointing out the Trump administration’s clashing positions.

“[W]e write to inform the Court of statements made by President Trump’s attorney during the Senate impeachment trial that contradict DOJ’s principal argument in this case,” the House lawyer, Douglas Letter, wrote.

The filing was one in a series of from Letter regarding two cases: One case seeks to force former White House counsel Don McGahn’s testimony before the House Judiciary Committee, despite an order from the President; another seeks grand jury material from the Mueller probe.

The contradiction boils down to this: In the Senate impeachment trial, Trump’s defense team has argued against the “Obstruction of Congress” charge against him by saying that the courts, not the impeachment process, are the proper venue to pursue witnesses and documentary evidence that Trump has blocked from reaching congressional investigators. In short, the evidence must be litigated in court.

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But in court, in the McGahn and Mueller grand jury cases, Justice Department prosecutors have argued for months that the disputes are political — not an appropriate place for the courts to step in. In short, the evidence cannot be litigated in court.

“The Executive Branch cannot have it both ways,” the Judiciary Committee said in a statement Tuesday.

A similar contradiction is ongoing in another case, as well: Justice Department lawyers argued in a Supreme Court brief Monday that House subpoenas for documents from Trump’s accounting firm and bank are illegitimate.

Letter pointed out the familiar pattern in his latest filing on Tuesday, in the Mueller grand jury case.

The President’s lawyer Ken Starr asserted during Monday’s impeachment proceedings that the Senate was “not a legislative chamber during these proceedings. We are in a tribunal. We are in court,” Letter pointed out.

Meanwhile, he said, “DOJ’s principal argument in this case is that a Senate impeachment trial is not a ‘judicial proceeding’ under Rule 6(e) — because the Rule refers to proceedings in court.”

Rule 6(e) says that grand jury material may be shared “in connection with a judicial proceeding.” The impeachment trial is such a proceeding, Democrats argue. The Justice Department has countered that it isn’t — even going so far as to say the famous grand jury “road map” materials that were crucial to the Nixon impeachment would have been kept from Congress if the dispute over them was retried today.

“Because DOJ’s position in this case cannot be reconciled with President’s position in the impeachment, DOJ may wish to withdraw its argument that a Senate impeachment trial does not qualify as a judicial proceeding,” Letter concluded.

Read Letter’s filing below:

This post has been updated.

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