Asked by a federal judge what the House can do to enforce its subpoenas, Justice Department lawyer James Burnham said without hesitation that the House can use its impeachment powers, among other options, like withholding appropriations.
A few hours later, lead Democratic House manager Adam Schiff mentioned Burnham’s assertion during Trump’s impeachment trial.
“In the category of you can’t make this stuff up,” Schiff said on the Senate floor. “The judge says if the Congress can’t enforce its subpoenas in court, then what remedy is there? And the Justice Department lawyer’s response is impeachment.”
Eliciting laughter from the senators, Schiff, a California Democrat, continued, “You can’t make this up. I mean, what more evidence do we need of the bad faith of this effort to cover up?”
Trump is fighting charges of abuse of power over his Ukraine dealings, and obstructing Congress for ordering his aides to defy subpoenas. Trump’s lawyers say the President was lawfully protecting the executive branch in a dispute with Congress over documents and testimony.
During the court hearing, in response to Burnham’s suggestion about impeachment, Judge Randolph Moss responded, “that is really not a great state of affairs for this country,” if the House should impeach the President over every subpoena that his administration ignores.
The topic came up in a hearing about the 2020 census. The House Oversight Committee sued the Justice Department and Commerce Department in November, asking a judge to enforce its subpoenas for documents. The case revolves around the controversial and ultimately unsuccessful attempt by the Trump administration to add a citizenship question to the census.
Even though the case isn’t about impeachment, the judge’s actions could influence other impeachment-related cases, and the arguments several times danced near major issues appearing in the Senate impeachment trial. Several cases on related issues are currently being litigated.
Moss repeatedly pressed Burnham to explain what the House can do if a subpoena is ignored — and if they don’t have many options, the subpoenas are more like voluntary requests. The Justice Department has argued that the House can’t ask the courts to enforce subpoenas.
Throughout the impeachment inquiry, Trump’s lawyers urged senators to acquit Trump on the obstruction charge, which House Democrats approved after Trump told senior aides not to testify, even those with firsthand knowledge in the Ukraine affair. He also directed the State Department and Pentagon, and other agencies, not to hand over subpoenaed documents.
“Mere assertion of a privilege or objection in a legitimate interbranch dispute is a constitutional prerogative,” Trump lawyer Robert Ray said Monday. “It should never result in an impeachable offense for abuse of power or obstruction of Congress.”
Hours after the court hearing and the Senate discussion, the Justice Department tried to downplay Burnham’s statements about impeachment.
“The point we made in court is simply that Congress has numerous political tools it can use in battles with the Executive Branch — appropriations, legislation, nominations, and potentially in some circumstances even impeachment,” said department spokeswoman Brianna Herlihy.
Contradiction addressed in court
Later in the hearing, Burnham explained why the Trump administration believes it’s not contradicting itself during the impeachment trial.
Burnham said the Democratic-controlled House wants to have it both ways: It wants to impeach the President for obstruction of Congress and also ask courts to enforce its subpoenas for executive branch information.
And, Burnham conceded, the Trump administration wants it both ways, too — no impeachment, and no court cases.
“They are hypocrites. We are hypocrites, I guess,” Burnham said in court Thursday. Many of the lawyers in the nearly packed courtroom laughed.
In court, the Justice Department has maintained for months that judges shouldn’t have power to settle standoffs between Congress and the White House.
This week, the House used its ongoing cases to pummel the Justice Department over their apparent inconsistencies with Trump’s legal arguments in the Senate. The House raised the contradiction over several court filings in cases that relate to Congressional subpoena power as it investigates Trump, pointing out that the President’s impeachment attorneys said the House should have gone to “the courthouse six blocks down” the street.
