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The House's Other Lawsuits Are Getting In On Impeachment

The House is starting to do in court what legal experts have long said would give it the upper hand in getting documents and testimony on President Donald Trump: Invoke impeachment.

House lawyers, after notching a win last Friday in their bid to get Trump's private financial documents from his accounting firm Mazars, on Wednesday asked the U.S. Court of Appeals for the D.C. Circuit to speed up the timeline for getting that information. And, for the first time in the case, they acknowledged the information could be beneficial for its impeachment inquiry.

"The House is now engaged in an impeachment investigation against President Trump, which is advancing on an expedited basis, and information received in response to the Mazars subpoena could be highly relevant to that inquiry as well," the filing argued.

While other House lawsuits—namely, those seeking grand jury materials redacted from the Mueller report and public testimony from ex-White House counsel Don McGahn—have largely leaned on impeachment, the suits predating the impeachment inquiry instead hinged on the House's oversight powers.

The House isn't giving up on defending those either. But the effort to include impeachment as grounds for the subpoena could give them a boost in court.

It's also a way to counter Judge Neomi Rao's dissent in the Mazars case, in which she argued the only way Congress can obtain documents that could detail potentially impeachable offenses is if it's part of an impeachment inquiry.

"The House has begun an impeachment inquiry, which, even under the dissent's theory, would justify the subpoena issued here," Wednesday's filing read. "Although the Court's carefully considered opinion correctly holds that the subpoena is enforceable even in the absence of such an inquiry, this change in circumstances renders the dissent's approach so limited in application as to make it highly unlikely that further review would be granted."

We're still waiting on a ruling from the U.S. Court of Appeals for the Second Circuit on a similar congressional subpoena for Trump documents from Deutsche Bank and Capital One. Regardless of that outcome, don't be surprised to see impeachment come up in future filings for the case as well.

It's almost ironic that some House cases are only catching up with impeachment now, as Letter's lawsuits arguably caused lawmakers to acknowledge for the first time earlier this year that they were in an impeachment inquiry. At the same time, no one knew when the subpoenas were issued that the president would urge the Ukrainian president to investigate his political rival.

 

 

What Letter?

A lot of people seem to be ignoring White House counsel Pat Cipollone's letter saying the White House won't "participate" in the House's impeachment inquiry.

Both current and former Trump administration officials have been showing up at the House since the letter was issued, testifying for hours behind closed doors about what they allegedly witnessed at the State Department and White House over the withholding of military aid from Ukraine in exchange for investigations into the Biden family.

After the Trump administration tried to block testimony for some witnesses, committee chairmen overseeing the inquiries quietly issued subpoenas for the witnesses—and the witnesses seem more than willing to comply (at least those not named Rudy Giuliani).

The White House faces its own subpoena deadline today, but it's all but certain to defy the congressional mandate.

White House acting Chief of Staff Mick Mulvaney seems to be on deck for a Democratic subpoena, after he acknowledged during a press briefing Thursday that the Ukraine aid was withheld because the Trump administration wanted authorities to investigate unproven claims that Ukraine, and not Russia, was linked to the hacking of the DNC server.

When reporters asked how that didn't qualify as a quid pro quo, Mulvaney replied, "I have news for everybody. Get over it. There's going to be political influence in foreign policy."

Yeah guys, get over it!

Mulvaney later tried to walk back the comments in a statement, accusing the media of having "decided to misconstrue my comments" and claiming he meant to say the aid was held back because of concerns about corruption in Ukraine.

 

 

A Look Ahead

October 22: Diplomat William "Bill" Taylor is scheduled for a closed-door deposition. He's the one who texted U.S. Ambassador Gordon Sondland that it was "crazy" to withhold military aid in exchange for a political investigation. Arnold & Porter's John Bellinger III is representing Taylor. October 23: ABC News reports that Philip Reeker, the acting assistant secretary for European and Eurasian Affairs, will give a closed-door deposition. Office of Management and Budget's associate director for national security programs Michael Duffey is also set for a deposition, according to Axios. October 24: Ukrainian expert and National Security Council member Alexander Vindman will reportedly be deposed, as will acting assistant secretary for international security affairs Kathryn Wheelbarger, Axios reports. October 25: Three depositions are reportedly scheduled for next Friday: Foreign service office Suriya Jayanti, National Security Council senior director for Russian affairs Tim Morrison and acting OMB director Russell Vought.

 

Kaplan Hecker & Fink of counsel Joshua Matz.

 

What We're Reading

>> House Judiciary Just Added an Impeachment Scholar as Trump Inquiry Ramps Up: "The House Judiciary Committee is tapping a top legal scholar on impeachment as it prepares for its expanded role in the impeachment inquiry. Kaplan Hecker & Fink of counsel Joshua Matz is the latest attorney to be added to the committee's legal team. Matz, who has been involved in several high-profile lawsuits against the Trump administration, is an expert on impeachment, offering legal expertise and firepower to the committee as it prepares for its role in impeachment proceedings. A committee spokesperson on Wednesday confirmed the hire." (NLJ)

>> 'Moral Clarity and Political Courage': How Elijah Cummings Is Being Remembered: "The legal community was mourning Thursday over the death of U.S. Rep. Elijah Cummings, the longtime Maryland Democrat and stalwart civil rights defender who more recently had played a leading role in overseeing investigations of the Trump administration. Cummings was 68. He died from 'complications concerning longstanding health challenges,' according to a statement from his office." On a personal note—I reported on Cummings and his committee over the past year, and he quickly became one of my favorite lawmakers to cover. Cummings' ability to command a room, even during the most contentious of hearings, was untouchable, and his presence will be missed. (NLJ)

>> Jon Sale Confirms Work for Giuliani Has Ended After Subpoena Snub: "Jon Sale's legal work for Rudy Giuliani is ending, Sale confirmed to Law.com on Tuesday. That's about two weeks after Sale confirmed he was representing Giuliani, President Donald Trump's personal lawyer, in the congressional impeachment investigation into Trump and his foreign affairs. Sale, a former Watergate prosecutor now practicing at Nelson Mullins Riley & Scarborough….said his representation of Giuliani did not end prematurely and said the scope of his engagement was limited to responding to a congressional subpoena." (Law.com)

>> En Banc Fourth Circuit Will Reconsider Its Trump Emoluments Ruling: "The U.S. Court of Appeals for the Fourth Circuit has agreed to an en banc rehearing of arguments alleging that President Donald Trump is violating the emoluments clause of the Constitution. The circuit will now hear the case brought forward by the attorneys general for Maryland and D.C. on Dec. 12, after a majority of judges on the circuit voted in favor of doing so. A unanimous panel ordered that the case be dismissed in July." Add in Thursday's announcement that the 2020 G7 summit will be held at Trump's Doral resort in Miami, these emoluments claims aren't leaving anytime soon. (NLJ)

>> White House Lawyer Emmet Flood Rejoins Williams & Connolly: Emmet Flood, the White House lawyer who led the administration's response to the Mueller investigation, is returning to Williams & Connolly as a partner. The firm says that Flood 'will resume his practice in the areas of white collar defense, complex civil litigation, internal investigations, Congressional investigations and crisis management situations.'" (NLJ)

>> Senior DOJ Lawyer Donald Kempf Resigned Amid Misconduct Probe, Sources Confirm: "Donald Kempf Jr., a former senior lawyer in the U.S. Justice Department's antitrust division, stepped down last year during an internal investigation that would conclude he viewed sexually explicit images on government computers and made false statements when he was questioned about the conduct, according to sources familiar with the probe." (NLJ)

>> House Asks DC Circuit to Fast-Track Timeline for Trump's Financial Docs: "The House of Representatives on Wednesday asked the U.S. Court of Appeals for the D.C. Circuit for an 'immediate issuance of the mandate' in getting President Donald Trump's private accounting firm Mazars to provide documents to Congress….That could help speed up the process of getting the case to the Supreme Court, the apparent goal of Trump's private attorneys at Consovoy McCarthy." (NLJ)

That's all, folks! See you next Friday.