Desperate to continue investigating President Donald Trump, House Democrats have signaled that they may try to file additional articles of impeachment against him.
The stunning declaration was made in a court brief reportedly filed Monday afternoon that concerned former White House counsel Don McGahn, whom the president has blocked from testifying before either the House Intelligence or Judiciary committees.
Attorneys with the House Judiciary Committee in particular argued in the brief that McGahn’s testimony would still be invaluable, despite House Democrats having already filed two articles of impeachment against the president.
But why would his testimony be relevant if the Democrats’ original case “was unbelievably ironclad and certainly beyond anything we could ever imagine,” as retiring North Carolina. Rep Mark Meadows sarcastically put it over the weekend?
Because, the committee’s attorneys argued, his testimony could be used to file additional articles of impeachment against the president.
“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,” their brief reads.
Moreover, McGahn’s testimony could also be used to bolster the House’s case as it pertains to the already filed “obstruction of justice” article, they added.
“McGahn was a witness to several of the President’s past efforts to undermine investigations into foreign interference in elections, which relate directly to the obstruction of Congress Article of Impeachment. … McGahn’s testimony would thus inform the House’s decision-making about impeachment and presentation of the Articles in a Senate trial,” the brief continues.
Assuming the Senate trial ever occurs. House Speaker Nancy Pelosi has shown interest in holding onto the articles of impeachment indefinitely — even as the House Democrat-controlled Judiciary Committee considers filing additional articles.
And this despite House Democrats already having filed articles of impeachment, as reportedly noted by the Department of Justice in a counter-briefing.
In the counter-briefing filed Monday, the DOJ also made the case that the courts shouldn’t be intervening now that one set of articles have been filed.
“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,’” that filing reads.
“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.”
It’s not clear how the court will rule, though things aren’t looking good for Democrats.
“Once House Dems voted to impeach, they lost any chance to have the federal courts order Trump’s advisers to appear,” former New York Lt. Gov. Betsy McCaughey notes. “The Supreme Court ruled in 1993 that judges cannot interfere in impeachment trials, because the Senate has ‘the sole power’ over them.”
Monday’s proceedings came roughly a month after an Obama-appointed judge ruled against the Trump administration and ordered McGahn to testify before the Judiciary Committee.
“[T]he Court holds only that [McGahn] (and other senior presidential advisors) do not have absolute immunity from compelled congressional process in the context of this particular subpoena dispute,” Judge Ketanji Brown Jackson decreed.
“However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
In short, Jackson ruled that presidents don’t have the power to proffer executive immunity …
In response, Democrats celebrated:
Schiff statement on the McGahn ruling pic.twitter.com/52Zfv4mQMc
— Jeremy Herb (@jeremyherb) November 26, 2019
Former WH Counsel Don McGahn must comply with this court order by testifying before Congress immediately.
And let’s be clear: he shouldn’t delay testifying by asking Gorsuch and Kavanaugh—the very justices he hand-picked for SCOTUS—to bail him out.
No one is above the law. https://t.co/KasC1o4PrQ
— Kamala Harris (@SenKamalaHarris) November 25, 2019
But those celebrations came to an abrupt halt a few short days later.
First, The Wall Street Journal’s editorial ran a scathing piece bashing Jackson’s ruling.
“She embraces a doctrine of Congressional supremacy that essentially says that even the President’s closest advisers must appear on Capitol Hill more or less on command. … You don’t have to be a constitutional scholar to see the risks here. If advisers can be forced to appear before partisan opponents on demand, White House discussions are likely to become more circumspect. Presidents are likely to get less honest advice, and advisers will get less candid insight into a President’s views,” the board warned.
And then a day after the editorial’s publication, Jackson backtracked on her original ruling.
“A federal judge on Wednesday ordered a brief pause on her ruling that ex-White House Counsel Don McGahn must show up for testimony compelled by Congress,” Talking Points Memo reported at the time.
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