WASHINGTON — Attorneys for House Democrats on Friday challenged the Trump administration on its claims of executive powers in two court hearings that, while not directly related to the impeachment inquiry into President Trump, could come to influence the Senate trial that is expected to begin shortly.
The first hearing was over whether former White House counsel Don McGahn has to comply with a subpoena from the House Judiciary Committee, part of an ongoing lawsuit first filed in August. Trump had declared that McGahn and other senior White House officials had “absolute immunity” from honoring congressional subpoenas. A federal judge in the District of Columbia district court ruled in November that Trump could not keep McGahn from testifying, since, in the judge’s memorable words, “presidents are not kings.”
Democrats want McGahn to testify because they believe he “witnessed multiple acts of potential obstruction of justice by the President,” according to one of their court filings. And even if what he knows is not related to the effort to pressure Ukraine to launch investigations that could help Trump politically — the basis of the impeachment inquiry — Democrats believe that, should McGahn ever testify, he could bolster their broader case against Trump’s suitability for office.
The second hearing was intended to force the Department of Justice to turn over grand jury depositions conducted by former special counsel Robert Mueller in the investigation into Russian interference in the U.S. election, as well as the Trump administration’s alleged efforts to hinder that investigation. That hearing is part of a lawsuit filed in July. In October, a District of Columbia district court judge ruled that the Trump administration had to turn over the materials.
In both cases, the question is the same: Just how far do congressional oversight powers extend into the executive branch?
Administration lawyers argued that those powers do not extend very far at all. They asserted that Congress could not even file suit over such questions, because dragging the judicial branch into the dispute would needlessly taint the courts with political considerations.
“It’s a very dangerous position in terms of our basic constitutional structure of checks and balances,” said Elliot Mincberg, formerly chief counsel for the House Judiciary Committee and currently a senior fellow at People for the American Way, a progressive think tank in Washington.
Mincberg described the administration’s position as one of “extreme arrogance.”
During the McGahn hearing, an administration attorney used a formulation favored by some conservatives, asserting that “unelected, unaccountable judges” should not be making decisions of great political consequence.
That line of argumentation seemed to leave the judges somewhat discomfited. “Is there no proper role for the courts?” wondered Judge Judith Roberts. In effect, administration lawyers said that, no, there wasn’t one when it came to one co-equal branch of government challenging another.
David Rivkin, a partner at Washington firm BakerHostetler who has written articles critical of the impeachment inquiry, told Yahoo News that administration’s line of argument was in harmony with the constitutionally described separation of powers.
“There’s nothing the judiciary can do — or should do,” he said, speaking specifically of the McGahn testimony. “The proper resolution of such conflicts is through political channels.”
That was the reasoning proffered by the administration, which argued that Congress had “political tools” to punish a recalcitrant White House. That view was at least partially endorsed by Judge Thomas Griffith, who told House attorneys that they were “not without remedy here.”
Griffith suggested that, for example, the House could pressure the Senate to stop confirming judges. The Republican-controlled Senate would be unlikely to comply with such a request, as it has little incentive to punish a president of its own party.
At the same time, Griffith lamented the “broad-scale defiance” of the Trump administration, which has categorically refused to honor congressional subpoenas issued by Democrats. In the impeachment inquiry, key figures like acting White House chief of staff Mick Mulvaney and White House budget chief Russell Vought both refused to testify.
Both arguments were heard before three judges. Notably, the second panel included Neomi Rao, a Trump-appointed judge who is a favorite of conservatives. Of all four judges (Roberts and Griffith were on both panels), she was most amenable to the administration’s arguments about why House Democrats’ claims to the Mueller grand jury testimony were not legally valid.
“Where does Congress get the right to grand jury information?” she wondered at one point. Rao also said that while the court had the power to “authorize” the release of grand jury testimony, it could not compel Department of Justice to release the testimony.
Rao had a strong adversary in House general counsel Douglas Letter, who opened his remarks by calling the administration’s arguments “completely wrong,” adding later that it was “unfathomable” that the Department of Justice would continue to refuse to turn over the grand jury records, even after having been ordered to do so.
On two separate occasions, attorneys for the House Democrats acknowledged that they could file new articles of impeachment based on the outcomes of the two cases, especially if new evidence turned up that Trump had made false statements or engaged in obstructive acts.
“Yes, that is on the table,” Letter said of bringing new articles. “There is no doubt.” He said he was speaking on the authority of House Speaker Nancy Pelosi.
But both cases remain deeply unsettled, with neither panel giving a sense of when it might issue a ruling. And when it does, an appeal to the Supreme Court is all but certain.
“The House will very likely win all of these battles,” says legal analyst Glenn Kirschner, a former Washington, D.C., federal prosecutor. “But the Trump administration will win the war of attrition,” Kirschner predicted, “by weaponizing the courts and using these endless appeals — and the delays that come with every appeal — to run out the clock until November 2020.”
That, of course, is when the nation will decide whether to give Trump another four years in the White House. The election could make even questions of grave constitutional importance relatively immaterial.
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