Yes, you can. No, you can’t. Yes, you can! Those are not just the lyrics to an old show tune; they’re also the refrain in a disconnect between the case Donald Trump’s attorneys are pressing in Trump’s Senate impeachment trial and positions that Trump’s Department of Justice is taking in multiple courtrooms. In particular, the motley crew of con man lawyers undertaking Trump’s defense before the Senate has shouted that the place to obtain cooperation from subpoenaed witnesses is the courts. At the same time, the DOJ is continuing a case that claims that Congress can’t go to court to enforce subpoenas of Trump’s advisers.
Under Attorney General William Barr, the Justice Department’s Office of Legal Counsel has argued that Trump isn’t subject to indictment. It’s argued that Trump can’t be mentioned as a suspect in legal proceedings. It’s argued that Trump can’t even be investigated. And now it’s arguing that when Trump says no to a subpoena, Congress has no recourse at all.
And now the House is using the Trump lawyers’ argument in the Senate to battle Barr’s argument in court.
As The Washington Post reports, attorneys representing the House of Representatives brought the position argued by Trump’s impeachment team into federal court with them on Thursday in the ongoing fight with the Justice Department. In a case that’s already been mentioned several times on both sides of the impeachment proceedings, House attorneys have been seeking testimony from former White House counsel Donald McGahn. When the House dropped cases against other Trump advisers who had resisted subpoenas, it was because its legal team was concentrating on the McGahn case in the hope of making it a model that could force quick obedience to any other subpoena.
The House already won its case in federal court, with a decisive ruling that was highly dismissive of the case presented by White House attorneys. However, the McGahn case was immediately appealed, and the DOJ argument to the appeals court is that … the appeals court has no business even hearing arguments. Incredibly, the DOJ has argued that the appeals court is “barred from considering subpoena-enforcement suits brought by the House.”
The argument is that the judicial branch was to withdraw from any dispute between the executive and legislative branches. Which is convenient for Trump, since he has no intention of cooperating with congressional oversight in any way. In past cases, courts have been reluctant to engage in this kind of dispute, and have frequently backed away while ordering the other branches of government to work out their differences. But there’s a very big difference between that reluctance to get involved and the idea that the judiciary is barred from making a ruling—especially when the White House has made it clear that it has no interest in negotiating.
Now the House attorneys are back with fresh evidence in the form of the claims that Trump’s attorneys have made in the Senate. Trump’s team has repeatedly claimed that if the House wanted to see witnesses cooperate, it would take them to court. With Trump’s own attorneys arguing a case contradictory to the DOJ position, the House has asked the U.S. Court of Appeals for the D.C. Circuit to make a quick ruling on the basis that the ruling could affect the Senate outcome.
If the court rules that it really is barred from intervening in such cases, then claims that the House should have taken witnesses to court are moot … and Trump apparently has unlimited authority to obstruct. On the other hand, if the court rules that McGahn must testify, it’s very likely that subpoenas will then go out to John Bolton and Mick Mulvaney. If the Senate does not issue such subpoenas, the House will.
The most likely outcome is that the court will come down where it has in the past: The other branches of government should work out their differences without coming to court. But if they have to come to court, the court will give them a ruling.
The only way that Trump comes out a winner is a ruling that his privilege cannot be challenged. In which case the losers are everyone in America.