Trump Lawyers: Congress Can't Not Go To Court To Decide Subpoenas Court Has No Say Over!
Donald Trump's legal strategy of throw it all up against the wall and see what sticks has hit a bit of a snag. Turns out, people actually notice when you take one position with the courts and a totally opposite one in nationally televised impeachment hearings. Go know!
To wit, Trump's crack legal team has asserted for months that the court has no right to intercede in a dispute between the House and the president. But now they're arguing that the House impeachment efforts is UNLEGAL and no further witnesses can be called because mean Adam Schiff with his treason paraphrases failed to sue to enforce subpoenas on witnesses the White House barred from testifying.
And that goes double for anyone who might have a book coming out that contains a firsthand account of Trump withholding aid to Ukraine until their government agreed to announce a bullshit investigation of Joe Biden and his son!
When John Bolton's assistant Charles Kupperman sued to get a judicial determination of whether he was obliged to answer the House's impeachment subpoena, the White House intervened to argue that "this Court lacks jurisdiction to issue declaratory relief against the President." That case has been dismissed, but the House suit to compel Don McGahn to testify in response to a House subpoena is still ongoing.
In the McGahn case, the White House has consistently maintained that the House Judiciary Committee lacks standing to sue to enforce its own subpoenas against the executive branch. Back in November, US District Judge Ketanji Brown Jackson disagreed, calling that argument horseshit, roughly speaking, and ordered Don McGahn to comply with a subpoena and testify.
The Justice Department immediately appealed, with DOJ Attorney Hashim Mooppan arguing on January 3 that, if judges step in to "resolv[e] a purely political dispute, a dispute between the political branches, it risks politicizing the court and undermining public confidence in the court."
Which is exactly the opposite of what Donald Trump's legal team has argued this week in the Senate, where Trump's attorney Jay Sekulow bellowed sanctimoniously that, "The President's opponents in their rush to impeach refuse to wait for complete judicial review. That was their choice."
Yes, why didn't House Democrats, who have been litigating the McGahn case since the spring and probably won't see it resolved for another year at least, allow the impeachment to get bogged down in years of litigation to secure the appearance of witnesses in the face of persistent stonewalling by the Trump administration? It's a mystery!
Cry some more, Jay.
Speaker Pelosi clearly expressed her impatience and contempt for judicial proceedings when she said we cannot be at the mercy of the courts. Think about that for a moment. We cannot be at the mercy of the courts. 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.
Yeah, boo fuckin' hoo.
House Democrats pointed out this inconsistency in a letter to the DC Circuit Court yesterday, arguing that the Trump administration should be estopped from making its standing argument.
At the very least, President Trump's recognition that courts should resolve such suits undermines DOJ's contrary threshold arguments in this case, which seek to prevent the House and its committees from seeking judicial resolution of subpoena-enforcement disputes. The Executive Branch cannot have it both ways.
To which the White House responded with a letter bemoaning the House's obstruction article that penalized Donald Trump for fighting subpoenas. Which is rather an understatement, since the White House didn't fight any particular subpoena on specific legal grounds; it just issued a blanket refusal to cooperate at all with the House impeachment inquiry. But anyway .... whiiiiiiiiiine.
If it weren't for bad faith, these people would have no faith at all.
Unfortunately, the Trump administration will be able to drag all this litigation out past November. And after that, God willin' and crick don't rise, the issue of impeachment subpoenas will be moot, since we'll have a different president.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.