The Justice Department on Tuesday accused House Democrats of shopping for a friendly federal judge in its effort to force former White House counsel Don McGahn to testify about potential obstruction of justice by President Donald Trump.
In a new court filing, the Justice Department dinged the House Judiciary Committee for “attempting to game the system” by seeking to formally link its McGahn suit to a separate effort to access former special counsel Robert Mueller’s grand jury evidence.
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Democrats say the cases are related because they are both connected to an ongoing “impeachment investigation” that could result in an effort to recommend Trump’s ouster. And tying the cases together could help expedite them, they argued.
But the Justice Department said House Democrats undercut their own argument for haste by waiting three months to file suit against McGahn, who refused to testify after the White House claimed he was “absolutely immune” and directed him to refuse to cooperate with Congress.
“For one thing, the committee’s desire for rapid adjudication rings hollow given that the committee waited until August to file suit over former counsel McGahn’s testimony despite being formally advised of the former counsel’s absolute immunity from compelled congressional testimony on May 20, 2019,” the filing states.
“Thus, any delay is the committee’s doing at this point.”
The Justice Department said the House’s true aim was to put both cases in front of D.C.’s chief federal judge Beryl Howell, who was already considering the grand jury matter, because of the perception that the appointee of former President Barack Obama might rule favorably in their case. It’s an attempt, the department argues, to manipulate longstanding requirements that cases be randomly assigned to judges to prevent judge-shopping.
Underscoring their point, Justice Department lawyers — arguing on McGahn’s behalf — said the demand for McGahn to testify and the request for Mueller’s grand jury evidence are based on “completely different factual and legal issues” and have no basis for being linked.
“[T]he two cases could not be more different,” the attorneys argued.
The Justice Department’s filing came a day after House lawyers argued in a separate filing that two of their court cases should be linked because both “seek key evidence for the Judiciary Committee’s investigation into whether to recommend articles of impeachment … based on the same underlying obstructive acts by President Trump.”
The Justice Department did not directly address the House’s assertions that it is conducting an impeachment investigation, but the filing referred to the effort as a “so-called” probe.
Last week, Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said his panel was engaged in “formal impeachment proceedings,” a rhetorical escalation that matched what House lawyers had told federal judges in recent court filings. Nadler has also said that if the courts move quickly to address the House’s litigation, his committee could recommend articles of impeachment by the end of the year.
Democrats appear to lack the votes to open an impeachment inquiry in the traditional fashion, driven in part by Speaker Nancy Pelosi’s outward resistance to taking that step. Pelosi is mindful of forcing her most vulnerable caucus members to take a politically difficult vote when impeachment efforts are all but certainly doomed in the Republican-controlled Senate. She has repeatedly argued for continued litigation against and investigation of the president.
Republicans have pointed to her ambivalence as evidence that no formal inquiry has begun.
“Democrats seem to believe, when it comes to holding this president accountable, that the ends justify the means and that they shouldn’t be constrained by House procedure when our democracy is under siege,” Georgia Rep. Doug Collins, the top Republican on the Judiciary Committee, wrote in a recent op-ed. “In reality, they may do more to harm our democracy than any president ever could.”
In their own filing, Democrats argued that their authority for claiming to be in the midst of an impeachment probe stems from Jefferson’s Manual — a guide to parliamentary procedure employed by the House and Senate. The manual indicates that impeachment proceedings can be launched in a variety of ways, not just through a formal vote of the House. One method is via the referral of articles of impeachment to the Judiciary Committee.
As Nadler and other Democrats note, the House referred articles of impeachment to the committee in January, and they say those articles are now officially under consideration for approval or amendment.
Democrats in recent weeks have pointed to a series of House actions they say bolster their position. In early June, the House voted to allow all committee chairs to enforce subpoenas in court — with the approval of House leaders acting on behalf of the entire chamber.
And last month, the House adopted a resolution declaring all Trump-related subpoenas and demands for information — retroactively and into the future — to have the support of the full House. Impeachment inquiry supporters say this is evidence that the House intended, however indirectly, to back impeachment proceedings without a formal vote.
Similarly, Judiciary Committee officials have noted that previous votes to authorize impeachment proceedings have been intended to empower the committee to issue subpoenas and convene depositions in an era when committees had far less authority than they do in the modern era. Now, the committee already has subpoena and deposition authority, they note.