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Democrats use Kenneth Starr’s own words to contradict the Trump administration in a pending lawsuit

In this image from video, Kenneth W. Starr, an attorney for President Trump, speaks during the impeachment trial in the Senate on Monday, Jan. 27, 2020. (AP)

Attorneys for House Speaker Nancy Pelosi (D-Calif.) are using the words of the president’s own legal team, and attorney Kenneth W. Starr, to try to undercut the Trump administration’s position in a pending lawsuit over access to secret grand jury materials Democrats are seeking.

During the defense presentation in the impeachment trial of President Trump on Monday, Starr, the former independent counsel who is part of Trump’s team, reminded senators they do not sit as jurors and are in fact a “court.”

“History teaches us that for literally decades, this body was referred to in this context as the high court of impeachment,” said Starr, whose investigation formed the basis of the impeachment trial of former president Bill Clinton. “So we are not a legislative chamber during these proceedings. We are in a tribunal. We are in court.”

House is investigating whether Trump lied to Mueller, its general counsel told a federal appeals court

Trump administration lawyers have been arguing the opposite in a pending lawsuit, House lawyers told the U.S. Court of Appeals for the D.C. Circuit in a new filing Tuesday.

In court, the Justice Department has argued that a Senate impeachment trial is not a “judicial proceeding” and therefore not exempt from secrecy rules that shield grand jury materials from disclosure.

“That argument has now been contradicted by the president’s counsel’s statements to the Senate, which confirm that the Senate sits as a ‘court’ rather than a ‘legislative chamber’ during an impeachment trial,” according to the filing from House general counsel Douglas N. Letter.

Appeals court grapples with wading into political fight over grand jury materials, McGahn testimony

House Democrats have said they need the secret material from the Russia investigation of former special counsel Robert S. Mueller III to determine whether the president lied in his written answers to Mueller’s investigation and to try to establish a pattern of alleged obstruction by the president as part of the impeachment proceedings.

In response Tuesday, the Justice Department stood by its position that there is no exception in the rules for impeachment to the secrecy shield and that the courts should stay out of a political dispute.

“The rule does not contemplate impeachment proceedings, regardless of the terminology the Senate employs,” according to the filing from DOJ lawyer Mark R. Freeman.

Debate underway in the Senate trial about which evidence lawmakers should consider “underscores the oddity” of the House Democrats’ view that courts, rather than the Senate itself, should decide whether there is a “particularized need” for certain evidence, Freeman said.

He urged the judges not to serve as “gatekeepers” when it comes to questions of evidence in the Senate impeachment trial.

The appeals court is reviewing a decision by Chief U.S. District Judge Beryl A. Howell who ruled in October that the House was legally engaged in a judicial process that exempts Congress from secrecy rules that shield grand jury material.

Howell had called “extreme” the Justice Department’s position that despite legal rulings during the impeachment inquiry into Richard M. Nixon, courts in 1974 should not have given Congress materials from the Watergate grand jury.

The appeals court panel could rule at any time.

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