The House’s top lawyer on Thursday used President Donald Trump’s legal arguments against him in two “urgent” court cases that could provide valuable Mueller probe-era evidence for use in the impeachment trial.
For months, the House Democrats and the Justice Department have been fighting parallel court battles over the evidence — a key witness and grand jury materials — that, Democrats say, are essential for the impeachment trial.
House lawyer Douglas Letter argued in two letters Thursday that the Trump legal team’s arguments during the impeachment trial had changed the game.
In one case, Democrats are pushing for former White House Counsel Don McGahn, a key Mueller probe witness, to testify before the House Judiciary Committee about instances of potential obstruction of justice by Trump that McGahn described to Robert Mueller’s investigators. McGahn has complied with a Trump order that he not testify.
Such testimony could demonstrate the pattern of obstruction that Democrats seek to prove in the impeachment trial. A federal judge ruled in the House’s favor in November. The Trump administration appealed; a decision at the appeals level is expected soon.
The Justice Department has been steadfast that the courts aren’t the right place for this battle. Instead, Trump administration lawyers insist the fight is fundamentally one between Congress and the Executive Branch.
But Trump’s own impeachment lawyers contradicted that argument during the impeachment trial, the House argued in a filing in the D.C. Circuit Court of Appeals Thursday.
Letter pointed to an argument advanced by Trump lawyer Jay Sekulow during impeachment proceedings: Sekulow claimed Tuesday that the Obstruction of Congress impeachment charge approved by the House ignored the court battle the House could have waged to secure testimony from administration witnesses.
“We’re acting as if the Courts are an improper venue to determine constitutional issues of this magnitude?” Sekulow said. “That is why we have courts. That is why we have a federal judiciary.”
In light of that argument, Letter argued, “it is not clear whether the DOJ still maintains its position that courts are barred from considering subpoena-enforce suits brought by the House.”
“The Executive Branch cannot have it both ways,” Letter wrote.
On Friday morning, the Justice Department replied. It maintained its position that Democrats didn’t have standing to pursue McGahn’s testimony in court. Despite Sekulow’s claim on the Senate floor, it said, the President’s legal team’s written brief on impeachment was in line with the DOJ’s position. Specifically, it acknowledged that the House had taken the “opposite view” of the McGahn case as the Trump administration.
It was the House, the Justice Department lawyers insisted, that was trying to “have it both ways” — by both insisting that the request for McGahn’s testimony should be argued in court and also treating “resistance to any demand for information from Congress” as an impeachable offense.
Separately on Thursday, Letter wrote to the same appeals court about another “urgent” and ongoing Mueller probe-era fight: House Democrats’ effort to obtain grand jury materials from the Mueller probe.
“[O]ne of President Trump’s defenses in the impeachment is that the House should have gone to court to obtain the information he withheld,” he argued. “The House did exactly that here.”
“The suggestion that courts could not adjudicate Congressional requests for documents related to impeachment is undermined by President Trump’s own argument that the courts should resolve the House’s entitlement to withheld material,” Letter added.
He concluded by emphasizing the “urgent need” for the Mueller documents.
“[I]t is difficult to conceive of a public interest more substantial than ensuring that the House obtains highly pertinent evidence to present to the Senate as it considers whether the President should be removed from office,” he wrote, adding: “We respectfully urge the Court to rule expeditiously.”
Read the House’s filing in the McGahn case here:
And the Justice Department’s response:
Read the House’s filing in the Mueller grand jury case here:
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