WASHINGTON (CN) — Just days after saying that the House impeachment vote mooted a court fight with subpoenaed former White House counsel Don McGahn, the Trump administration told the D.C. Circuit the opposite Monday, saying now would be a good time for courts to slow down the case.
The Justice Department made the argument in a supplemental brief ahead of a Jan. 3 hearing where the federal appeals court will consider a scathing ruling that directed McGahn to testify. “Presidents are not kings,” U.S. District Judge Ketanji Brown Jackson had thundered in the dramatic 120-page opinion.
Though last week the government had said that the Democrats’ stated reason for subpoenaing McGahn “appears to be moot,” its follow-up brief denies this.
“Whether or not that allegation is correct on the merits, it survives the House’s impeachment vote and thus the suit is not moot — which also renders irrelevant whether or not the subpoena was ever validly justified by the House’s impeachment power in the first place,” the 10-page filing states.
What the impeachment vote has done, the brief continues, is remove the need to proceed expeditiously.
“In particular, there is certainly no reason to ‘affirm the district court’s order without delay, such as by immediately vacating the stay and issuing the court’s order, with an opinion to follow in due course,’” the government says, quoting a brief from the Democrat-led House Judiciary Committee. “Nor is there any justification for otherwise expediting the court’s decision in this case beyond holding oral argument on the already-scheduled date of January 3.”
President Donald Trump’s Justice Department closes out the brief with an argument on why it says the court lacks jurisdiction.
“Pursuing an interbranch suit in court while simultaneously pursuing impeachment, and then using that litigation as part of the impeachment proceedings, is ‘far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement,’” the brief states.
The government says the merits of the case directly implicate obstruction of Congress, an issue that Trump’s impeachment trial in the Senate will resolve.
“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 brief concludes.
The brief coincides with a letter Monday fro Senate Minority Leader Chuck Schumer about the need for McGahn and other heretofore absent witnesses to testify.
“As the Senate prepares for the impeachment trial of President Trump, there has been a great deal of discussion regarding the need for the testimony of witnesses,” the New York Democrat wrote. “I believe it is essential that the Senate hear from certain witnesses in order to conduct a full, fair and speedy trial in this case.”
Senate Majority Leader Mitch McConnell, R-Ky., has been uncompromising on his position that House Democrats have provided the Senate with all the evidence needed to conduct a trial. McConnell said Thursday that Trump had used executive privilege when blocking testimony from White House staff.
The Department of Justice did not immediately return an email for comment, Monday.