Some of us who criticize the House’s second article of impeachment against Trump — alleged obstruction of justice based on refusing to produce documents and witnesses — argue that the remedy for the non-cooperation is to seek enforcement of subpoenas in court, not to impeach the president. However yesterday, as discussed below, the Trump Justice Department argued in court that the judiciary shouldn’t even consider enforcing House subpoenas because to do so would be improperly to inject the judiciary into a dispute between the executive and legislative branches.
The Justice Department argued that these two branches should duke it out without interference from the third, unelected branch. To add insult to injury, the Justice Department suggested that, in duking it out, one of Congress’s remedies is to impeach the president!
The two positions described above aren’t truly inconsistent. There is no obstruction of justice until the president violates a court order or, arguably, until Congress has at least exhausted its judicial remedies.
Courts might reject the Justice Department’s position that they can’t become involved, and order the White House to comply with the subpoenas. If the president refuses to comply, only then is there a genuine obstruction of justice argument.
Alternatively, courts might reject the Justice Department’s argument that they can’t become involved, but decline to enforce the subpoenas on the merits. In that case, the president clearly did not obstruct justice by refusing, in the first instance, to comply with the subpoenas. There’s nothing wrong with asserting valid objections to subpoenas.
Nonetheless, one can understand the House’s frustration at being told by the president’s defenders to go to court rather than to impeach, only to be told in court by the Trump DOJ that the judiciary can’t become involved, and that the remedy (or one of them) is impeachment.
Yesterday, the United States Court of Appeals for the District of Columbia Circuit heard oral argument in two cases where the House seeks to enforce subpoenas against the White House. Neither involves material related to Ukraine — the subject of the impeachment. Both involve material related to alleged obstruction of justice in connection with the Mueller investigation — the subject of a potential impeachment (but see below).
I heard most of one of the arguments on C-SPAN — an argument relating to a subpoena to obtain the testimony of former White House counsel Don McGahn. As noted above, the Justice Department argued aggressively that the district court — which ordered production of the evidence — shouldn’t have even heard the merits of the case because it involves a dispute between the executive and the judiciary. It maintained that for the judiciary to become involved in such a dispute would be to overreach in a way that would harm the constitutional fabric.
Personally, I’m more comfortable with judges adjudicating disputes over subpoenas (even disputes between the two branches) than I am with judges striking down legislation passed by one branch and signed into law by the other (although judges must do so in some cases). Furthermore, the “duke it out” remedies mentioned by the Justice Department — e.g., impeachment and refusing to fund the government — strike me as more harmful to the Republic than having judges resolve a subpoena dispute.
However, I gather from the oral argument that there is language in Supreme Court cases that supports the Justice Department’s position. Hashim Mooppan, the DOJ lawyer in the case involving McGahn, did an outstanding job of marshaling that language and of navigating his way through hostile questioning from Judge Judith Rogers (a Clinton appointee) and tough questioning from Judge Thomas Griffith (a Bush 43 appointee).
Judge Rogers will almost certainly vote to affirm the district court’s ruling in favor of the House (and enforcing the subpoena). I couldn’t tell which way Judge Griffith is leaning. In general, he seemed more satisfied with the DOJ’s answers to his questions than with those of the lawyer representing the House. But that might simply reflect Mooppan’s superb advocacy.
The third judge, Karen LeCraft Henderson (a Bush 41 appointee), asked very few questions. She did note, however, that even if the House wins and McGahn testifies, there are various privileges, including attorney-client, that he might want to invoke in lieu of answering questions.
Judge Henderson’s questioning highlights the long road the House must travel to get the evidence it seeks. Even if it prevails in the D.C. Circuit — overcoming the DOJ’s technical arguments as well as those on the merits — the government would, I assume, seek Supreme Court review. And even if the House’s case survives such review, McGahn will have grounds for not answering the main questions he’ll be asked. (As for the other case heard yesterday, involving documents, there’s a chance that the White House won’t turn them over even it loses that litigation.)
Finally, even if the House gets all of the testimony and documents it seeks, what effect will this have? House Democrats will say that the evidence demonstrates obstruction of justice by the president.
But will the House Dems add new articles of impeachment? The Washington Post says that additional articles “are not under serious consideration among [House] leaders loath to repeat. . .a[n] impeachment saga before the 2020 election.”
The D.C. Circuit judges are, I assume, willing to adjudicate disputes between the executive and legislative branches, if that’s what the law requires of them. But the judges who spent this past holiday season reading briefs and preparing for oral argument might be wondering, as Judge Griffith said he is, why they are being asked to adjudicate this particular one on an expedited basis.