Donald Trump’s personal attorneys on Tuesday attacked the House of Representatives for impeaching the President while not going to court to force some officials’ testimony and for refusing to wait for federal court rulings on whether witnesses must testify.
But at the same time, the White House has attempted to use the courts during impeachment to their advantage to delay and to dodge the House’s subpoenas for information. Specifically, Trump’s Justice Department has defended the President by arguing in several federal court cases against the House that judges have no role in deciding disputes between Congress and the administration.
“The President’s opponents in their rush to impeach refuse to wait for complete judicial review. That was their choice,” Trump attorney Jay Sekulow argued Tuesday.
“(House) Speaker (Nancy) Pelosi clearly expressed her impatience and contempt for judicial proceedings when she said we cannot be at the mercy of the courts,” he added. “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.”
Yet the Justice Department has sought to get court cases dismissed that test congressional subpoenas of executive branch officials and information for impeachment proceedings. When they lost those attempts and rulings came down against the White House, the Justice Department appealed. Those appeals are ongoing.
House Intelligence Chairman Adam Schiff, one of the House managers, criticized what he said was hypocrisy.
“(W)hile these lawyers for the President are here before you today saying the House should have gone to court, they’re in court saying the House may not go to court to enforce subpoenas. I kid you not,” the California Democrat said.
“Other lawyers, maybe not the ones at this table, but other lawyers for the President, are in the court saying the exact opposite of what they’re telling you today,” Schiff added. “They’re saying you cannot enforce congressional subpoenas. That’s non-judiciable. You can’t do it.”
Three major court cases bubbled out of impeachment. All were far from final when the House impeached Trump.
Two relate to the House Judiciary Committee’s still-ongoing obstruction of justice investigation stemming from special counsel Robert Mueller’s findings. Both of the Mueller-related cases could make a difference on how much evidence the House gathers during an impeachment. Yet the cases have languished in the courts since this summer.
In both cases, the White House and Justice Department lost their arguments to keep information from the House and White House officials from testifying. “Presidents are not kings,” one judge wrote, slamming the White House’s approach to broadly protect its current and former top officials.
The DC Circuit Court of Appeals – a step below the Supreme Court – heard arguments in the two cases at the beginning of January. The appeals court hasn’t ruled on either yet.
During the appeals court arguments in the case over former White House counsel Don McGahn’s testimony, a Justice Department attorney argued that instead of getting court orders, Congress should use its own power to punish recalcitrant administration witnesses.
“The House hasn’t done anything with its appropriations power at all to try to enforce the informational demands it’s made on the Executive,” James Burnham of the Justice Department said. “The reason for that, I think, is that they don’t have the political support or the political will to do it. But that’s a good – that’s a feature. If the House, if Congress doesn’t care enough to use the tools that it has, running to the courts is not something the Constitution contemplated.”
The House initiated both of the Mueller-related cases, but have hung back from filing others to force testimony or to pry at documents.
In other House investigations, where committees seek Trump’s financial records, Trump has largely filed lawsuits to stop or at least pause House subpoenas. He has lost in both trial courts and appeals courts, though Trump’s legal strategy has successfully held off the House from getting documents because none of those cases have a final decision from the Supreme Court yet.
In the financial documents realm, the House brought one case against the IRS and Treasury Department, for their failure to turn over Trump’s tax returns to Congress. That case is paused while an appeals court considers the McGahn testimony subpoena.
The third impeachment-related court case, where former deputy national security adviser Charles Kupperman went to court to ask whether he needed to comply with a House subpoena, was dismissed by the judge, but not until months passed sidelining the fight over his congressional testimony.
Trump attorney Jay Cipollone on Tuesday lamented Kupperman was “forced to get a lawyer.”
Schiff said Trump’s legal defense team contradicted the Justice Department on enforcing subpoenas in court, citing Cipollone’s argument about the Kupperman case.
“So these lawyers are saying he should, and those lawyers are saying he shouldn’t,” Schiff said. “They can’t have it both ways.”
The House eventually withdrew its subpoena of Kupperman in an attempt to have the case thrown out of court more quickly. The case still hung in the court system for months, showing just how protracted a court fight over impeachment witnesses and documents can be.
Kupperman opened the case in late October. The trial-court-level judge didn’t dismiss it until December 30.
If the case had survived with a clear winner and loser between the House and the White House, it likely would have taken months more for it to move through appeals courts and, eventually, to the Supreme Court.