House Democrats went to court seeking testimony from former White House counsel Donald McGahn and access to secret grand jury evidence from former special counsel Robert S. Mueller III’s Russia investigation. Justice Department attorneys have urged the appeals court to stay out of what they say are political disputes between Congress and the White House.
But at the Senate trial this week, Trump’s lawyers criticized House Democrats for moving too swiftly to impeach the president without allowing the courts to rule on the congressional subpoenas.
In their filing Thursday, the House lawyers said Trump’s arguments in the impeachment trial undercut the Justice Department’s assertion that the House may not seek to enforce its subpoenas in court.
“In light of President Trump’s argument, it is not clear whether DOJ still maintains its position that courts are barred from considering subpoena-enforcement suits brought by the House,” according to the filing.
“The Executive Branch cannot have it both ways. Because the impeachment trial has now begun, the need for Mr. McGahn’s testimony is more urgent than ever. We respectfully urge the Court to rule expeditiously.”
In response Friday, Justice Department lawyers said the two positions — in the Senate and in court — were consistent and that the assertion from House lawyers “is incorrect.”
The House Judiciary Committee, they said, cannot go to court to enforce a subpoena and then simultaneously use the president’s resistence to that subpoena as justification for charging Trump in an article of impeachment with obstruction of Congress’ investigation.
“We previously warned that the House seeks to use this litigation to support impeachment,” according to the filing from Hashim M. Mooppan, deputy assistant attorney general. “Now, the Committee seeks to use the impeachment proceedings to support this litigation.”
That “unprecedented commingling,” he wrote, underscores why the courts should not get involved in political disuptes between the two branches.
The D.C. Circuit could rule at any time.