But that argument is in direct conflict with the Trump Justice Department’s own forceful arguments — some as recently as this month — that allowing courts to step into such battles between Congress and the White House would be an affront to the separation of powers. On Jan. 3, a Justice Department attorney fighting the House’s impeachment inquiry said “unelected” judges should not be “refereeing” such disputes. DOJ attorney Hashim Mooppan argued that the court should steer clear of “a purely political dispute.”
“It risks politicizing the court and undermining public confidence in the court,” Mooppan said. “If this court rules on the merits, one way or the other, you can be assured that the opinion that this court issues will be waved on the floor of the Senate by one side or the other as evidence that either the president is guilty or the president is innocent.”
In other words, Trump’s case against his removal from office on charges of obstructing Congress — the second article of impeachment that House Democrats adopted last month — relies on an argument that his Justice Department and White House lawyers have explicitly rejected.
“Other lawyers — maybe not the ones at this table, but other lawyers for the president — are in the courts saying the exact opposite of what they’re telling you today,” House Intelligence Chairman Adam Schiff (D-Calif.), the lead impeachment manager, said in response to the claims during Tuesday’s session of the trial. “They’re saying you cannot enforce congressional subpoenas. You can’t do it.”
That jarring reversal, in an effort to slap down Democrats’ push to remove Trump from office, could spill into multiple ongoing legal fights between Congress and the White House — including one that could have immediate ramifications on the impeachment trial: the Trump administration’s challenge to a House subpoena seeking testimony from former White House counsel Don McGahn.
A federal appeals court panel could decide any day whether the House can legally force McGahn to testify, while the president continues to assert that he is “immune” from speaking to lawmakers. House lawyers have indicated that they would seek to make immediate use of potential testimony from McGahn — a star witness in former special counsel Robert Mueller’s investigation — in the impeachment trial, to show what they say is a pattern of efforts by Trump to obstruct investigations into his conduct.
Such an effort, though, is likely to fail as the impeachment trial begins in earnest this week. House officials did not immediately indicate whether they would flag this reversal for the appeals court’s consideration in the case.
During Tuesday’s session, Sekulow harangued Speaker Nancy Pelosi for saying the House should not be “at the mercy of the courts,” arguing that Pelosi’s view dangerously discounts the federal judiciary’s role as outlined in the Constitution.
“Think about that for a moment. ‘We cannot be at the mercy of the courts,’” Sekulow said. “So take Article III of the United States Constitution and remove it? We’re acting as if the courts are an improper venue to determine constitutional issues of this magnitude? That is why we have courts.”
Pelosi was seeking to push back against the idea that House Democrats should pump the brakes on their impeachment inquiry and wait for the courts to resolve disputes between the legislative and executive branches — prompted by White House efforts to block testimony from key witnesses and its refusal to comply with subpoenas seeking documents the House demanded.
Democrats have defended the decision to refuse to wait for court fights to play out as a response to the urgency of the allegations against Trump: that the president’s alleged solicitation of foreign interference in the 2020 election threatens the integrity of the process and U.S. national security. Waiting for lengthy lawsuits to make their way to the Supreme Court would essentially allow Trump to run out the clock on congressional investigators, they have argued.
Rep. Val Demings (D-Fla.), another impeachment manager, said Trump should not “hide all the evidence while disingenuously insisting on lawsuits that he doesn’t actually think we can file — ones that he knows won’t be resolved until after the election.”
But Trump and his allies now contend the opposite: that Democrats’ refusal to wait for the courts — and their desire to draw out new evidence during the Senate trial — suggests a lack of confidence in their case.
Patrick Philbin, the deputy White House counsel, said on the Senate floor Tuesday that it was a “stunning admission” of the “broken process” that House Democrats relied upon — including their decision to put an arbitrary deadline on the process.
Rep. Zoe Lofgren (D-Calif.), one of the House’s seven impeachment managers, rebutted this claim on the Senate floor. Lofgren, who served as a House staffer during Richard Nixon’s impeachment process and a lawmaker during the impeachment of Bill Clinton, said federal courts had already litigated those issues, going as far back as Watergate.
“The House and the Senate should not be required to litigate U.S. v. Nixon back to the Supreme Court and down again for it to be good law,” she said, referring to the landmark case that upheld Congress’ right to obtain information from the executive branch. “It is good law. The president has not complied with those requirements to the detriment of the truth.”