The House said in court filings Monday that more impeachment charges against President Trump are possible based on the testimony they are seeking from his former White House counsel and grand jury material they want to review from the Russia investigation.
That assertion was made in response to an argument from attorneys for the Department of Justice that the impeachment vote has undercut the rationale behind the House’s demands.
“It is far from clear that the Committee . . . will have any further role in the impeachment process at all,” they wrote. “The Committee has referred articles of impeachment to the House; the House has approved those articles; once the articles are transmitted to the Senate, the next steps are for the Senate to determine.”
The dueling memos came in two separation-of-powers lawsuits pending at the federal appeals court in Washington. The U.S. Court of Appeals for the D.C. Circuit next week will review the two cases in back-to-back hearings.
In the first case, House Democrats are asking the court to enforce a subpoena for Donald McGahn, who lawmakers have said is the “most important” witness in whether Trump obstructed justice in special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 presidential election.
The second case involves the House’s effort to gain access to certain secret grand jury material from Mueller’s probe.
Both lawsuits were filed before the formal start of the impeachment proceedings and last week’s House vote, which centered on Trump’s alleged effort to pressure his Ukrainian counterpart to investigate a potential 2020 political rival.
Ahead of oral argument, set for Jan. 3, the D.C. Circuit judges asked lawyers for the House and the Justice Department whether their positions had changed following the vote to impeach Trump on Dec. 18. The judges in each case asked “whether the articles of impeachment render this case moot and whether expedited consideration remains necessary.” The lawyers were also asked to address whether lawmakers are seeking McGahn’s testimony and the grand jury evidence in connection to the impeachment inquiry — or to legislative oversight.
Attorneys on both sides agreed that neither case is moot. But the Justice Department said the impeachment vote strengthens their position that the courts should stay out of a dispute between the other two branches of government.
“This Court should decline the Committee’s request that it enter the fray,” they wrote, “when political tensions are at their highest levels.”
The lawmakers said the two cases are urgent even if impeachment moves forward without new charges, as the House has yet to present their evidence to the Senate.
“McGahn was a witness to several of the President’s past efforts to undermine investigations into foreign interference in elections,” House lawyers wrote. Likewise, they said the grand jury materials will show the president’s “history of obstruction.”
In the McGahn case, the court is reviewing a November decision by U.S. District Judge Ketanji Brown Jackson in Washington. She found no basis for a White House claim that the former counsel is “absolutely immune from compelled congressional testimony” and upheld the House Judiciary Committee subpoena from August.
Trump had blocked McGahn’s appearance, saying McGahn had cooperated with Mueller’s probe, was a key presidential adviser, and could not be forced to answer questions or turn over documents.
In her ruling, Jackson, a Barack Obama nominee, called the administration’s immunity claim “a fiction” maintained “through force of sheer repetition,” one that has never gone through the “crucible of litigation.”
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote. The assertion that a president can overrule current or former aides’ “own will to testify,” she added, “is a proposition that cannot be squared with core constitutional values, and for this reason alone, it cannot be sustained.”
The appeal will be heard by a three-judge panel made up of Judges Karen LeCraft Henderson, Thomas B. Griffith and Judith W. Rogers.
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In the second case, the D.C. Circuit is reviewing an October ruling from Chief U.S. District Judge Beryl A. Howell in Washington, who ordered the Justice Department to disclose evidence the House says it needs to determine whether Trump lied in his written answers to Mueller’s investigators.
Howell found that through the impeachment proceedings the House was legally engaged in a judicial process that exempts Congress from the secrecy rules that shield grand jury materials.
Justice Department attorneys say in court filings that the material should be off-limits because impeachment trials are not “judicial proceedings.” In opposing the release, department lawyers have said a Watergate-era court ruling was wrongly decided in finding impeachment proceedings exempt from grand jury secrecy rules.
The panel for the second case is made up of Judges Griffith, Rogers and Neomi Rao.
The pair of cases being heard on Jan. 3 are distinct from two other separation-of-powers battles the Supreme Court has agreed to review in March. In those cases, Trump is asking the high court to shield from disclosure to the House personal tax and financial records held by his accounting firm and banks.
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