McGahn ruling could lead to additional Articles of Impeachment

The House’s vote to impeach President Donald Trump drew an immediate reaction from the D.C. Circuit Court of Appeals, which issued a pair of orders directing House lawyers to indicate whether lawmakers are still seeking testimony from former White House counsel Don McGahn and portions of special counsel Robert Mueller’s report containing information gleaned from secret grand jury testimony. Politico reports, Appeals court wants answers on impact of impeachment:

Both orders raised the issue of whether the pending appeals may be moot and whether the cases, set to be argued on Jan. 3, should still be considered on an expedited basis. The court is demanding answers, and views from the Justice Department, by Monday afternoon.

On Monday, the court of appeals got its answer. Politico reports, House counsel suggests Trump could be impeached again:

The House is open to the prospect of impeaching President Donald Trump a second time, lawyers for the Judiciary Committee said Monday.

House Counsel Douglas Letter said in a filing in federal court that a second impeachment could be necessary if the House uncovers new evidence that Trump attempted to obstruct investigations of his conduct. Letter made the argument as part of an inquiry by the D.C. Circuit Court of Appeals into whether Democrats still need testimony from former White House counsel Don McGahn after the votes last week to charge Trump with abuse of power and obstruction of Congress.

“If McGahn’s testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly — including, if necessary, by considering whether to recommend new articles of impeachment,” Letter wrote.

It comes just hours after the Justice Department argued that the impeachment votes undercut lawmakers’ ongoing court case demanding testimony from McGahn, who was special counsel Robert Mueller’s central witness.

In a brief filed early Monday morning, DOJ lawyers acknowledge that the House’s approval of two articles of impeachment — focused on Trump’s alleged effort to withhold aid from Ukraine and his blockade of the House inquiry — do not render moot the legal fight over McGahn.

However, the Justice Department attorneys said the House Judiciary Committee’s decision to move forward with impeachment means there’s no longer urgency to resolve the House’s case. That bolsters the Trump administration’s argument that the courts should simply butt out of the legal showdown, the DOJ filing says.

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A second Justice Department brief in a related case — the Judiciary Committee’s demand for Mueller’s grand jury evidence — suggests without basis that the Judiciary Committee’s decision to advance articles of impeachment on the Ukraine scandal have effectively ruled out any effort to impeach the president based on Mueller’s evidence, therefore rendering the matter moot.

It’s unclear why the Justice Department argues that the committee has conceded that the Mueller impeachment investigation is over when House lawyers and lawmakers have described it as ongoing and active.

As The Daily Beast accurately describes this, Bill Barr’s DOJ Tells the Courts and Congress to Get Lost:

[T]he Department of Justice is contending that the federal courts should not enforce Congress’s impeachment subpoenas regardless of their legal validity. Therefore, if Attorney General William Barr gets his way, Congress’ sole recourse to obtain the testimony of the missing Trump Administration witnesses will be to arrest them itself, and jail them until they talk.

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In the McGahn case, the DOJ has asserted that Congress lacks “standing,” that is the basis to be heard at all in court, in order to enforce its impeachment-related subpoenas for testimony. The DOJ’s extreme position is of a piece with a speech Attorney General Barr gave in November before the right-wing Federalist Society, in which he argued that courts should simply refuse to decide many disputes between Congress and the president. Soon thereafter, during a hearing in the grand jury case, Judge Neomi Rao—a former Trump administration official—expressed sympathy with Barr’s argument.

In a filing on Monday, the DOJ doubled down on that position, asserting, among other things, that, because Congress impeached Trump in part for his categorical refusal of virtually all of Congress’ demands for testimony, it would be improper for the courts to issue a decision on whether any part of his stonewalling is illegal.

The absurdity of this argument is obvious.

If a president can avoid compliance with his legal obligations by getting impeached, then he would have a strong incentive to solicit impeachment by the House of Representatives in order to gain, quite literally, a license to break the law without recourse.

While the DOJ has not challenged Congress’ standing in the grand jury evidence case, for technical reasons related to the grand jury secrecy rules at issue, it nonetheless argued, in a brief also filed on Monday, that Congress has no further investigatory need for the materials because the articles of impeachment have been passed, an argument the House easily rebutted by noting that its investigation continues, and could lead to passage of additional articles.

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Barr’s contention that the courts should refuse to decide whether Congress’ impeachment subpoenas are valid is not only at odds with the courts’ central role in resolving national crises arising from legal disputes, it also invites the very kind of conflict the Supreme Court has previously intervened to prevent. If the courts refuse to act as Barr suggests, then Congress will have no option other than to exercise its long recognized—but now dormant—power of “inherent contempt,” whereby the House may imprison executive branch officials who have defied its subpoenas, and hold them in jail until, and if, they comply.

It is hard to imagine a greater recipe for national conflict than if the sergeant-at-arms of the Congress is battling it out with the secret service on the streets of Washington, D.C., as Congress attempts to arrest the highest-level members of the Trump administration, or possibly the president himself. And it is also difficult to imagine a more irresponsible abdication by the nation’s courts than that which William Barr is seeking.

Politico continues:

House lawyers indicated in advance of last week’s committee and floor votes that the panel planned to push on with its impeachment-related investigations. Democratic lawmakers who led the House impeachment inquiry have long contended that their efforts to gather more evidence would continue and that the timing of the impeachment vote reflected the urgency of the matter, not the conclusion of the effort to obtain witnesses and documents.

Letter’s new filing emphasizes the fact that nothing precludes the House from impeaching Trump again if it unearths new evidence, though no member of Democratic leadership has suggested such a course, particularly with a looming Senate trial and the presidential primary season imminent.

Letter also notes that McGahn’s testimony could become crucial evidence in the upcoming Senate trial.

“McGahn’s testimony is critical both to a Senate trial and to the Committee’s ongoing impeachment investigations to determine whether additional Presidential misconduct warrants further action by the Committee,” he argued. Letter added that McGahn’s testimony is important aside from these matters, as the House considers legislation that might arise from the details of Trump’s conduct.

Justice Department attorneys continued to make absurd arguments in their submission that the coming Senate trial is yet another reason for the judicial branch to stand aside.

I would remind you that Article II is for obstruction of Congress, the Trump administration’s “total obstruction” of Congress policy of prohibiting witnesses from testifying and refusing to produce documents requested by Congress. The only witnesses who have testified did so in defiance of the White House. The only documents obtained were through other congressional oversight proceedings, third-party FOIA requests, and from the witnesses themselves.

Senate Majority Leader “Moscow Mitch” McConnell is now aiding and abetting Trump’s ongoing obstruction of Congress by refusing Senate Minority Leader Chuck Schumer’s request to call these recalcitrant witnesses during the impeachment trial, and to subpoena documents. Schumer requests four witnesses, including Mulvaney and Bolton, in letter to McConnell about Senate impeachment trial. Mick Mulvaney previously admitted to a “quid pro quo” during a press conference, and John Bolton’s lawyer says he has information on Ukraine that hasn’t been disclosed. Neither witness has testified under oath. Why doesn’t McConnell want witnesses at Trump’s trial? Because he’s guilty.

Trump and McConnell don’t want a Senate trial that includes the handful of witnesses that Democrats have demanded because Trump is flagrantly guilty of all of the corruption for which he’s now been impeached. Trump got caught, and they all know he did everything he’s been accused of doing.

Such a trial would risk exposing this further — or worse. That’s because Trump’s conduct is without question even more corrupt than we currently know — probably much more so — and such a trial would risk additional revelations to this effect.

The Trump “Injustice” Department argues:

“If this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial,” the DOJ legal team wrote. “The now very real possibility of this Court appearing to weigh in on an article of impeachment at a time when political tensions are at their highest levels — before, during, or after a Senate trial regarding the removal of a President — puts in stark relief why this sort of interbranch dispute is not one that has ‘traditionally thought to be capable of resolution through the judicial process.’”

“This Court should decline the Committee’s request that it enter the fray and instead should dismiss this fraught suit between the political branches for lack of jurisdiction,” the Justice Department lawyers added.

This is fundamentally an issue for the courts to decide, not a jury-rigged Senate led by “Moscow Mitch” McConnell who is a coconspirator aiding and abetting this crime in progress. McConnell has said that he is in “total coordination” with the White House, and letting Trump call the shots on the impeachment trial. In effect, McConnell is enabling the defendant to obstruct the testimony of unfavorable witnesses against him. This is obstruction of justice.

If Trump had any exculpatory witnesses, he has had the opportunity to call them. He has failed to do so, instead opting to attack the impeachment process as unfair to him in a propaganda stunt.

We have been here before. See United States v. Nixon, 418 U.S. 683 (1974), the landmark United States Supreme Court case that resulted in a unanimous decision against President Richard Nixon, ordering him to deliver tape recordings and other subpoenaed materials to a federal district court.

Let’s hope that the courts today will act with the same sense of urgency as the courts did during the Watergate impeachment. In April 1974, Special Prosecutor Leon Jaworski obtained a subpoena ordering Nixon to release certain tapes and papers related to specific meetings between the President and those indicted by the grand jury. Nixon’s attorney, then requested Judge John Sirica of the U.S. District Court for the District of Columbia to quash the subpoena. Sirica denied Nixon’s motion and ordered the President to turn the tapes over by May 31. Both Nixon and Jaworski appealed directly to the Supreme Court, which heard arguments on July 8. Nixon’s attorney argued the matter should not be subject to “judicial resolution” since the matter was a dispute within the executive branch and the branch should resolve the dispute itself. Less than three weeks after oral arguments, the Court issued its unanimous decision.

Both of these cases are expected to be heard on Jan. 3 by partially overlapping three-judge panels. The Justice Department, which brought the cases to the appeals court, is not urging any delay of those arguments. However, the DOJ lawyers said the court shouldn’t rush to get out a decision in the McGahn case — potentially leaving a ruling until after the expected impeachment trial is complete.

The Trump “Injustice” Department wants delay, not the sense of urgency that the courts acted with during Watergate. Justice delayed is justice denied. There is no reason that the untenable position of the Trump “Injustice” Department cannot be disposed of quickly and the witnesses ordered to appear to testify.

This does not mean that the witnesses will  not make unfounded assertions of executive privilege that will also result in litigation. The courts should rule with haste.