As we suspected, albeit against much criticism, House counsel Doug Letter has responded to the DC Appeals Court arguing the forced testimony of White House counsel Don McGahn is needed for evidence in impeachment trial. [Court pdf Avail Here]
This court filing today bolsters the unspoken background motive for delayed House Impeachment Managers. The House Judiciary Committee is using impeachment as support for their ongoing effort to gain: Don McGahn deposition, and Mueller grand jury material (6e). The goal is opposition research; impeachment is a tool to establish legal standing to obtain it. Everything else is chaff and countermeasures.
This court filing bolsters CTH analysis that rushed House articles are a means to an end. That is – a way for House lawyers to argue in court all of the constitutionally contended material is required as evidence for pending judicial proceedings, a trial in the Senate.
This would explain why all the prior evidence debated for inclusion and legal additions to “articles of impeachment” were dropped. Instead the House focused only on quickly framing two articles that can facilitate pending court cases.
Here is the full House argument:
REMINDER: The House Judiciary Committee (HJC) led by Chairman Jerry Nadler has been seeking: (1) Mueller grand jury material; (2) a deposition by former White House counsel Don McGahn; and less importantly (3) Trump financial and tax records. Each of these issues is currently being argued in appellate courts (6e and McGahn) and the supreme court (financials/taxes).
Looking at the legal maneuvers from that perspective means the grand jury material is the unspoken goal and impeachment is simply the enhanced means to obtain it.
The 6(e) material relates to evidence gathered by the Mueller team for grand jury proceedings in their two-year effort to construct a case against President Trump.
Remember, the Mueller evidence was gathered during a counterintelligence investigation, which means all things Trump -including his family and business interests- were subject to unbridled surveillance for two years; and a host of intelligence gathering going back in time indefinitely. A goldmine of political opposition research.
Obviously if Jerry Nadler could get his hands on this material it would quickly find its way into the DNC, and ultimately to the 2020 democrat candidate for president. This material would also be fuel for a year of leaks to DC media who could exploit rumor, supposition, and drops of information that Andrew Weissmann and team left to be discovered.
Here is the DOJ Response:
Notice the DOJ is aware of how the HJC is trying to manipulate the system…
[…] “Pursuing an interbranch suit in court while simultaneously pursuing impeachment, and then using that litigation as part of the impeachment proceedings, is “far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement.” Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., concurring). But that is exactly what the Committee has done. The effect of that choice is
to “embroil the federal courts in a power contest nearly at the height of its political tension.” Id.
Indeed, if this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial. That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial. Cf. Nixon v. United States, 506 U.S. 224, 232, 235-36 (1993).
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.” Raines, 521 U.S. at 819.
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.