“We’re acting as if the courts are an improper venue to determine constitutional issues of this magnitude,” the president’s lawyer Jay Sekulow declared on the Senate floor. “That is why we have the courts, that is why we have a federal judiciary.”
But that argument was at odds with the one Justice Department attorneys have been making in a set of pending separation-of-powers cases, telling the courts to stay out of such political disputes between Congress and the White House.
The line of attack from the president’s legal team in the Senate, that Democrats must go to court to enforce subpoenas, seems to undercut the position of Trump’s Justice Department lawyers in court, who are telling judges they have no role to play.
Earlier this month, Justice Department attorney Hashim Mooppan warned the federal appeals court in Washington not to get involved in what he called a “political food fight” over a congressional subpoena for testimony from former White House counsel Donald McGahn. House lawyers, he said, had no legal grounds to sue to enforce the subpoena in the first place.
Allowing unelected, unaccountable judges to decide “who wins a political fight,” Mooppan told the U.S. Court of Appeals for the District of Columbia Circuit, “risks politicizing the court and undermining public confidence in the court.”
The appeals court could rule at any time on the White House’s broad claim that top advisers such as McGahn are “absolutely immune from compelled congressional testimony.” It’s unclear whether the court will ask lawyers for the House and the president to weigh in before the judges rule on the position staked out by Trump’s impeachment defense team in the Senate.
“Given what the president’s lawyers have argued thus far, I think we would be mistaken to search for any underlying consistency in the positions this administration takes in the courts or before Congress,” said Lisa Kern Griffin, a professor at Duke University School of Law.
“If they anticipate an unfavorable ruling, then they claim that the balance of power is none of the courts’ business,” she said. “If delay conveys some strategic advantage, then they argue that issues must be litigated all the way through the court system before evidence can be heard by Congress.”
Added Steve Vladeck of the University of Texas Law School, “It’s a pretty sobering sign of where we are that neither the Senate nor the courts, at least thus far, have seemed troubled by the inherent contradiction.”
But the Justice Department said Wednesday there is no daylight between the positions of the president’s two sets of lawyers and that the arguments are consistent with their broad position that the courts have no business deciding lawsuits between the two branches.
“The House cannot have it both ways. It cannot claim in court that courts should resolve every privilege dispute between the House and the President, while also claiming that impeachment should be the first remedy in every privilege fight rather than the last resort,” according to a senior DOJ official who spoke on the condition of anonymity because the official was not authorized to speak with attribution.
“If the House thinks it has the right to challenge privilege assertions in court, it cannot refuse to use that tool and instead leap immediately to the most extreme measure the Constitution provides.”
In the president’s Senate trial memo, his lawyers elaborate on their view that the House cannot insist on having courts resolve subpoena disputes while simultaneously using the president’s refusal to cooperate with House investigators as the basis for charging the president with obstruction in its impeachment proceedings.
While House Democrats have repeatedly turned to the courts, Rep. Adam B. Schiff (D-Calif.) said Tuesday that lawmakers could not allow Trump to delay impeachment through lengthy court battles.
“If the House were compelled to exhaust all legal remedies before impeaching the president, it would interpose the courts or the decision of a single judge between the House and the power to impeach,” Schiff said. “Moreover, it would invite the president to prevent his own impeachment by endlessly litigating the matter in court.”
Jonathan Turley, a George Washington University law professor who testified against Trump’s impeachment, remains troubled by the compressed timeline.
“The House set an arbitrarily short period and then said that the refusal to turn over the evidence in that brief period would be a high crime and misdemeanor,” Turley said Wednesday.
“Presidents have a right to seek judicial review. Both Richard Nixon and Bill Clinton were able to take their appeals all the way through the Supreme Court before facing impeachment.”