The Justice Department (DOJ) has pushed back on assertions made by House lawyers that President Donald Trumps lawyers had contradicted the DOJs position during the Senate impeachment trial in an ongoing case seeking White House counsel Don McGahns testimony.
House lawyers told a panel of judges at the U.S. Court of Appeals for the District of Columbia Circuit in a two-page letter (pdf) on Thursday, that a written response by the president and remarks made by his lawyer Jay Sekulow during the impeachment trial runs counter to one of the central arguments the DOJ has used to prevent the enforcement of a subpoena demanding that McGahn testify before the House Judiciary Committee.
In that case, DOJs lawyers argued that the federal court should not referee the dispute between Congress and the Trump administration. They suggested that it wouldnt be proper for the court to become involved in the interbranch legal fight, because the case would affect the impeachment process.
House counsel Douglas Letter said in the Thursday letter that “President Trumps arguments in the impeachment trial contradict DOJs assertion in this case that the Committee may not seek to enforce its subpoenas in court,” while citing examples.
“In light of President Trumps argument, it is not clear whether DOJ still maintains its position that courts are barred from considering subpoena-enforcement suits brought by the House,” Douglas Letter wrote. “At the very least, President Trumps recognition that courts should resolve such suits undermines DOJs contrary threshold arguments in this case, which seek to prevent the House and its committees from seeking judicial resolution of subpoena-enforcement disputes. The Executive Branch cannot have it both ways.”
In one of the examples, Sekulow criticized House Speaker Nancy Pelosi for not waiting for the courts to rule on whether subpoenaed witnesses like acting White House chief of Staff Mick Mulvaney should testify before proceeding with impeachment. Pelosi said at the time back in November that “we cannot be at the mercy of the courts. The courts are very important in all of this. Those cases will continue,” when asked whether the House would wait until the legal cases play out.
“We cannot be at the mercy of the courts. So take Article III of the United States Constitution and remove it? Were acting as if the Courts are an improper venue to determine constitutional issues of this magnitude? That is why we have courts. That is why we have a federal judiciary,” Sekulow told the Senate floor on Jan. 21.
DOJs attorney Hashim Mooppan responded to the Houses claim in a two-page letter (pdf) to the court on Friday rejecting the assertion.
He said that the excerpts taken by the House were “simply expounding on the Presidents position that the House cannot have it both ways.”
“They plainly were not reversing the position that the House may not properly seek judicial enforcement of subpoenas against the Executive,” he said.
He argued that the presidents trial memorandum (pdf) had reaffirmed the departments position that a dispute where a congressional committee is trying to enforce a subpoena against an executive branch official is not one that should be heard in an Article III court.
Mooppan also objected to the Houses “unprecedented commingling” of using the McGahn lawsuit to support the impeachment proceedings.
“We previously warned that the House seeks to use this litigation to support impeachment,” he said. “That unprecedented commingling vividly confirms the prescience of Justice Souters admonition that judicial intervention in this type of interbranch controversy would risk damaging the public confidence that is vital to the functioning of the Judicial Branch, by embroiling the federal courts in a power contRead More – Source