DOJ Pushes Back on House’s Claims That Trump Lawyer Contradicted Department in McGahn Case

Then-White House counsel Don McGahn listens to U.S. Supreme Court nominee Brett Kavanaugh testify before a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington on Sept. 27, 2018. Jim Bourg/Reuters

The Justice Department (DOJ) has pushed back on assertions made by House lawyers that President Donald Trump’s lawyers had contradicted the DOJ’s position during the Senate impeachment trial in an ongoing case seeking White House counsel Don McGahn’s testimony.

House lawyers told a panel of judges at the U.S. Court of Appeals for the District of Columbia Circuit in a two-page letter (pdf) on Thursday, that a written response by the president and remarks made by his lawyer Jay Sekulow during the impeachment trial run counter to one of the central arguments the DOJ has used to prevent the enforcement of a subpoena demanding that McGahn testify before the House Judiciary Committee.

In that case, DOJ’s lawyers argued that the federal court should not referee the dispute between Congress and the Trump administration. They suggested that it wouldn’t be proper for the court to become involved in the interbranch legal fight, because the case would affect the impeachment process.

House counsel Douglas Letter said in the Thursday letter that “President Trump’s arguments in the impeachment trial contradict DOJ’s assertion in this case that the Committee may not seek to enforce its subpoenas in court,” while citing examples.

“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,” Douglas Letter wrote. “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.”

In one of the examples, Sekulow criticized House Speaker Nancy Pelosi for not waiting for the courts to rule on whether subpoenaed witnesses like acting White House chief of Staff Mick Mulvaney should testify before proceeding with impeachment. Pelosi said at the time back in November that “we cannot be at the mercy of the courts. The courts are very important in all of this. Those cases will continue,” when asked whether the House would wait until the legal cases play out.

“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. That is why we have a federal judiciary,” Sekulow told the Senate floor on Jan. 21.

DOJ’s attorney Hashim Mooppan responded to the House’s claim in a two-page letter (pdf) to the court on Friday rejecting the assertion.

He said that the excerpts taken by the House were “simply expounding on the President’s position that the House cannot have it both ways.”

“They plainly were not reversing the position that the House may not properly seek judicial enforcement of subpoenas against the Executive,” he said.

He argued that the president’s trial memorandum (pdf) had reaffirmed the department’s position that a dispute where a congressional committee is trying to enforce a subpoena against an executive branch official is not one that should be heard in an Article III court.

Mooppan also objected to the House’s “unprecedented commingling” of using the McGahn lawsuit to support the impeachment proceedings.

“We previously warned that the House seeks to use this litigation to support impeachment,” he said. “That unprecedented commingling vividly confirms the prescience of Justice Souter’s admonition that judicial intervention in this type of interbranch controversy ‘would risk damaging the public confidence that is vital to the functioning of the Judicial Branch, by embroiling the federal courts in a power contest nearly at the height of its political tension.’”

The D.C. Circuit is soon expected to release a ruling deciding on whether to enforce the subpoena on McGahn, after hearing oral arguments from both sides on Jan. 3.

McGahn, who was viewed as a key witness in then-special counsel Robert Mueller’s investigation, was subpoenaed by the chamber’s Judiciary Committee in April to provide documents and appear before lawmakers as part of their investigation of possible obstruction of justice by President Donald Trump—something that Mueller didn’t conclude on in his report. Trump has denied any wrongdoing.

The White House blocked his appearance in May, asserting executive privilege over the documents. House Democrats subsequently sued McGahn in August in an attempt to enforce the subpoena.

In November, a district court judge ruled that McGahn must testify before the House, saying that executive branch officials are “not absolutely immune” from the compulsory congressional process, even if the president expressly directs the official’s non-compliance. The Justice Department (DOJ) subsequently appealed the decision to the appeals court.

The House also sent another letter (pdf) on Thursday asking the same court to rule expeditiously on another case related to the release of grand jury materials from Mueller’s investigation. The court also heard arguments on this case on Jan. 3.