On the opening day of Donald Trump's impeachment trial this week, Jay Sekulow, one of the president's controversial personal attorneys, insisted that it should be up to the courts to mediate disputes between the executive and legislative branches. That came as something of a surprise to many listening: the Trump administration has spent months making the opposite argument.
Not surprisingly, it didn't take long for congressional Democrats and their attorneys to take advantage of the contradiction. Politico reported yesterday:
House Democrats on Thursday night flagged to a federal appeals court panel comments made earlier this week by President Donald Trump's lawyers during the Senate impeachment trial in hopes it can spur a win in a pending case that could open a spigot of new information in their bid to remove the president.The two-page letter from the House's top lawyer brings to the attention of the U.S. Court of Appeals for the District of Columbia Circuit remarks made by Trump's personal attorney Jay Sekulow on the Senate floor questioning why Democrats hadn't tried to secure testimony in court from a key former White House aide -- rather than push ahead with impeachment.
The underlying case involves Don McGahn, the former White House counsel who was, for all intents and purposes, one of the star witnesses in Special Counsel Robert Mueller's investigation into the Russia scandal. As we've discussed, the Republican lawyer spoke with investigators for dozens of hours, and in the redacted version of Mueller's report, the former White House counsel is cited more than 150 times.
In some of the episodes in which Trump allegedly obstructed justice, the claims of suspected criminal misconduct are based heavily on what McGahn told investigators.
Indeed, as the former special counsel's findings made clear, the former White House counsel very nearly resigned because the president directed him to "do crazy s**t," including an incident in which, according to McGahn, Trump pressed the lawyer to push the Justice Department to derail the investigation by getting rid of Mueller and creating a false document to cover that up.
Naturally, lawmakers were eager to hear more, so they subpoenaed McGahn. The White House, true to form, directed McGahn to ignore that subpoena.
When the matter went to court, Trump administration lawyers argued that courts should steer clear of the dispute altogether. Indeed, it was earlier this month when the Justice Department's Hashim Mooppan argued that if judges tried to "referee" the fight between the White House and the Congress, it would risk "politicizing the court and undermining public confidence" in the judiciary.
And yet, there was Jay Sekulow this week, arguing for all the world to see that if congressional Democrats wanted to hear from some key White House witnesses, they should've delayed the impeachment inquiry and sought answers from the courts. That, Sekulow insisted, would not only be the proper and responsible approach, it would also be the only sensible course for those who care about the Constitution.
House Democratic attorneys yesterday made sure to remind the D.C. Circuit of Team Trump's latest pronouncement on the subject -- and the degree to which the president's defense lawyers disagree with Trump's Justice Department lawyers. A ruling on the McGahn subpoena is expected any day now.