Senate TV

President Trump’s attorneys have been calling the Senate “a court” and “tribunal” during proceedings this week — but when they’re in federal court, the administration has tried to keep the House from getting potential evidence against the President by arguing the opposite.

The House general counsel highlighted this doublespeak to federal appellate judges today, in the latest filing in a closely watched and still undecided court case.

“During the Senate impeachment trial, one of President Trump’s attorneys opened his remarks by informing the Senators that they do not sit as jurors,” House counsel Doug Letter wrote to the DC Circuit Court of Appeals today, quoting Ken Starr on Monday saying “We are in court.” 

But in the case before the appellate court — where the Justice Department has attempted to keep secret grand jury material collected by special counsel Robert Mueller and sought by the House Judiciary Committee as it investigates Trump — “DOJ’s principal argument in this case is that a Senate impeachment trial is not a ‘judicial proceeding,’” Letter wrote. The House has argued that it should be able to see the typically confidential grand jury information, because it needs to determine whether Trump obstructed Mueller and should be impeached on additional counts. 

How we got here: The House won access to the Mueller grand jury material at the trial-court level. The Trump administration appealed the decision — stopping the material from going to the House. The appeals court’s ruling could come any day.

“Because DOJ’s position in this case cannot be reconciled with President’s position in the impeachment, DOJ may wish to withdraw its argument that a Senate impeachment trial does not qualify as a judicial proceeding,” Letter wrote to the appeals court on Tuesday.

The Senate proceedings over the past week have prompted attorneys for the House to grasp onto several contradictions between Trump’s impeachment arguments and the Justice Department’s arguments in court. 

Previously, the House notified the appeals court how the Justice Department doesn’t want the judiciary to decide its disputes with Congress, yet Trump’s attorneys told the Senate that the House impeachment votes should have waited for court decisions. 

Separately from the court cases, the Trump administration has refused to turn over documents the House requested for its impeachment investigation and several top administration officials did not show up to testify, even when subpoenaed. The House largely chose not to sue over their thwarted subpoenas. 

The two ongoing court cases — which began prior to the Ukraine impeachment inquiry, shortly after the Mueller investigation ended — could affect the impeachment proceedings.

  1. One is the grand jury records case, where the House seeks redacted sections of the Mueller report that are secret under grand jury rules and the evidence related to those sections. This material is important, the House says, because it highlights what witnesses may have told the grand jury about Trump, and could help them determine whether he lied in his written answers to Mueller—potentially another impeachable offense.
  2. The other major ongoing case seeks to enforce the House’s subpoena former White House counsel Don McGahn, who witnesses many of Trump’s attempts to obstruct the Mueller investigation. (A trial-level judge ruled that the White House can’t stop its former officials like McGahn from testifying by claiming absolute immunity. A similar ruling from an appeals court and the Supreme Court could throw the standoff over witnesses during the Senate trial into disarray.)