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House Attorneys Tell Appeals Court DOJ Position on Subpoenas Conflicts with Trump Defense Team

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House Attorneys Tell Appeals Court DOJ Position on Subpoenas Conflicts with Trump Defense Team

2020-01-24 15:16:321 Oct 2018 01:53 AM EST

By Laura Tucker, Staff writer; Image: Jerry Nadler (Image source: Screenshot

House attorneys claim the White House wants it both ways. While the Justice Department says courts don't belong in the middle of disputes between the White House and Congress, Donald Trump's impeachment defense team is criticizing the House for not pursuing subpoenas in court first before impeaching him with the article of impeachment for obstruction of Congress. 

The matter was before the U.S. Court of Appeals for the D.C. Circuit late Thursday, with attorneys for House Speaker Nancy Pelosi (D-CA) arguing the contradiction in two pending cases dealing with separation-of-powers, witness testimony, and evidence. They are hoping for a quick decision that can possibly help argue the impeachment case being heard in the Senate trial this week.

One of the two cases is trying to force former White House counsel Don McGahn to obey a subpoena, and the other is for access to secret grand jury evidence from former special counsel Robert Mueller's Russia investigation. Justice Department attorneys have told the appeals court they don't belong in political disputes between Congress and the White House. 

However, Trump's attorneys criticized the House Democrats this week in the Senate impeachment trial for quickly impeaching the president without letting the courts rule on the subpoenas that Trump blocked his administration from obeying.

In the House attorneys' filing on Thursday, they argued that Trump's defense in the impeachment trial conflicts with the Justice Department's demand that the House cannot enforce its subpoenas in court. 

 The House filing read, "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," adding, "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."

The Justice Department attorneys responded on Friday, stating that the two separate positions being argued were consistent and that what the House attorneys are stating is "incorrect." 

They maintain that the House Judiciary Committee can't go to court to enforce a subpoena while also using Trump's resistance to that same subpoena to justify charging him with obstruction of Congress as an article of impeachment.

"We previously warned that the House seeks to use this litigation to support impeachment," reads the filing from Deputy Assistant Attorney General Hashim M. Mooppan. "Now, the Committee seeks to use the impeachment proceedings to support this litigation." 

He added that "unprecedented commingling" shows why the courts shouldn't get involved in political disputes between two branches of government.

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