Hello, and welcome (back) to Trump Watch! After a few months out of your inboxes, the newsletter is making a comeback to take on the legal news coming out of the Trump administration.

My name is Jacqueline Thomsen and I'll be covering it all, from judicial nominees to the latest lawsuits and yes, even impeachment. A little bit about me: I grew up outside of Boston before coming down to D.C., where I graduated from GW in 2017. After a couple years covering policy and politics for The Hill, here I am, in your inbox.

When not at the Capitol or in the courthouse, I'm at one of D.C.'s music venues, binge watching "The Great British Baking Show" or rooting on Boston sports teams (although I'm warming up to the Nats).

As I get into the swing of things, let me know what you think about Trump Watch and what you want to learn. Drop me a line at [email protected] with your tips, thoughts, feelings, cookie recipes etc., and follow me on Twitter at @jacq_thomsen, where you can stay even more up-to-date with the latest news.

Let's dive in.

Courts v. OLC

A pair of federal judges this week raised questions about the Department of Justice's stance that a sitting president can't be indicted.

The position, first outlined in a 1973 Office of Legal Counsel memo, was spotlighted when then-special counsel Robert Mueller said he did not make a traditional charging decision for President Donald Trump because of the guidance. He said that saying the president committed criminal conduct while lacking the power to indict him had the potential to set off a constitutional crisis.

But the issue came up again in an opinion from Judge Victor Marrero in the Southern District of New York on Monday, as he tossed out a lawsuit from Trump challenging the Manhattan district attorney's subpoena for his tax returns.

"The Court is not persuaded that it should accord the weight and legal force the President ascribes to the DOJ Memos, or accept as controlling the far-reaching proposition for which they are cited in the context of the controversy at hand," Marrero wrote, noting that the concept that a sitting president can't be indicted is generally linked back to the memos as the "sole authority for that proposition."

He said the U.S. Supreme Court has never directly ruled on whether a president can be subject to the level of immunity that Trump claimed his office offered to him, and that the memos "do not constitute authoritative judicial interpretation of the Constitution concerning those issues."

Marrero wrote that he believes "better-calibrated alternatives to absolute presidential immunity exist yielding a more appropriate balance between, on the one hand, the burdens that subjecting the president to criminal proceedings would impose on his ability to perform constitutional duties, and, on the other, the need to promote the courts' legitimate interests and functions in ensuring effective law enforcement attendant to the proper and fair administration of justice."

In a federal courthouse in D.C. the next day, Chief District Judge Beryl Howell raised similar questions about the DOJ guidance. During oral arguments over whether grand jury materials from the Mueller report should be given to the House as part of its impeachment inquiry, the judge sounded skeptical about courts' acceptance of the position.

"If DOJ's right that a sitting president can't be indicted—which is a principle that no court has ever said OK to or approved—and if DOJ is also right that an impeachment trial is not a judicial proceeding" and the House can't access grand jury information, Howell said, "doesn't that mean that a lot of the information that may have been collected in the criminal investigation about a sitting president would be buried or stuck behind this veil of grand jury secrecy?"

To be sure, the OLC memos are binding for those working in the executive branch, including federal prosecutors. With DOJ unable to pursue charges if an investigation shows criminal conduct by a sitting president, that arguably leaves only Congress with the power to hold the president accountable.

The Trump White House has repeatedly refused to cooperate with congressional oversight requests. White House counsel Pat Cipollone is now saying it will also refuse to cooperate in the impeachment inquiry—demanding legal rights during the beginning stages of an investigation that aren't granted until trial—and it's raising further questions about just exactly how the White House thinks Trump could face ramifications while he remains in office, if at all.

Lawyers almost immediately bashed the position as legally unsound. But House Democrats are likely wary to wage a legal battle over the approach, as it could drag out for years. Instead, as they eye an end-of-the-year vote on any potential articles of impeachment, lawmakers are more likely to fold the noncompliance into a separate charge—obstruction of Congress.

Still, if Congress can't access compelling evidence that Trump committed a "high crime or misdemeanor" while in office, it could prove difficult for the Republican-held Senate to vote for his removal. And with judges raising their own questions about whether the OLC memos would hold up in court, all signs point to it being an unsettled area of law.

A Look Ahead

The House will be back in session Monday for its first full week since Speaker Nancy Pelosi officially announced the impeachment inquiry. Here's what to mark on your calendar:

October 14: Giuliani business associate Sam Kislin is scheduled for a closed-door deposition with the House Intelligence Committee. U.S. Ambassador Gordon Sondland is also due to turn over subpoenaed documents, but it's unclear if the Trump administration will allow him to comply with the request.

October 15: Document-palooza! Rudy Giuliani, Vice President Mike Pence, the Pentagon and the Office of Management and Budget are supposed to hand over documents to House Democrats. None of them are expected to comply.

October 16: Sondland is due to appear for a closed-door deposition under subpoena, after his attorney Robert Luskin of Paul Hastings said the State Department blocked a voluntary interview this week.

October 17: The Senate Judiciary Committee will hold an executive business meeting to consider several judicial nominees, including Trump's embattled Fifth and Second Circuit picks: Halil Suleyman "Sul" Ozerden and Steven Menashi.

October 18: The White House is supposed to hand over subpoenaed documents to House Democrats. The committees have also subpoenaed Energy Secretary Rick Perry to give them documents on this date. To summarize Cipollone's letter, it's not going to happen.

What We're Reading

>> 'Wow': DC Judge Questions DOJ's 'Extraordinary' Stance on Mueller Grand Jury Info: U.S. District Chief Judge Beryl Howell asked DOJ if it believes U.S. District Judge John Sirica of the District of Columbia—who oversaw the grand jury under special prosecutor Leon Jaworski during Watergate—made the right decision in allowing the protected information gathered in his investigation to be handed over to the House during President Richard Nixon's impeachment proceedings. "If the same situation were presented today, he would not be able to do the same thing," absent changes to the rules on grand jury secrecy, said Elizabeth Shapiro, a deputy director in DOJ's civil division. Howell paused before replying, "Wow. OK." [NLJ]

>> Michael Avenatti Gets April Trial Date Over Charges He Stole From Stormy Daniels: "U.S. District Judge Deborah A. Batts of the Southern District of New York said the April trial date would give Avenatti and his attorney, Dean Steward, time to file a range of expected motions, including one to dismiss the indictment for vindictive prosecution. The trial, she said, would last about two weeks. Avenatti, who is facing three federal indictments in two jurisdictions, has claimed he is the target of a U.S. Justice Department that is out to get him because of his outspoken criticism of President Donald Trump." [NYLJ]

>> NY Federal Judge Presses DOJ Lawyers for Reason Behind 'Public Charge' Rule: "A Manhattan federal judge repeatedly pressed a Justice Department lawyer on the rationale behind the Trump administration's proposed "public charge" rule, which is aimed at making it easier for the federal government to deny green cards to immigrants who may rely on public assistance based on their income …The district judge said the new definition aimed to drastically narrow, without congressional approval, who is currently considered a public charge and asked why the administration chose to promulgate the rule." [NYLJ]

>> Two Foreign-Born Men Who Helped Giuliani on Ukraine Arrested on Campaign-Finance Charges: "Two foreign-born donors to a pro- Trump fundraising committee who helped Rudy Giuliani's efforts to investigate Democrat Joe Biden were arrested late Wednesday on criminal charges of violating campaign finance rules and are expected to appear in court on Thursday, according to people familiar with the matter. Lev Parnas and Igor Fruman, two Florida businessmen, have been under investigation by the U.S. Attorney's office in Manhattan." [The Wall Street Journal]

>> Trump Urged Top Aide to Help Giuliani Client Facing DOJ Charges: Bloomberg reports that Trump pushed then-Secretary of State Rex Tillerson to convince the Justice Department to drop charges against Giuliani's client, Iranian-Turkish trader Reza Zarrab. Tillerson refused, and then "immediately repeated his objections to then-Chief of Staff John Kelly in a hallway conversation just outside the Oval Office, emphasizing that the request would be illegal." [Bloomberg]

>> Trump Court Pick Ignores Senators' Questions About His Role In Ukraine Scandal: White House legal adviser Steven Menashi, who is also President Donald Trump's nominee to a lifetime seat on the U.S. Court of Appeals for the 2nd Circuit, is ignoring questions from Democrats on the Senate Judiciary Committee about what he knew about Trump's efforts to pressure Ukraine to investigate his potential 2020 rival, former Vice President Joe Biden. [HuffPost]

>> Must the House Vote to Authorize an Impeachment Inquiry?: "Is it constitutionally acceptable for the House speaker to initiate an impeachment 'by means of nothing more than a press conference'? In short, yes." [Lawfare]

Thanks for reading, I will be back with more Trump Watch next week.