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Everyone Loves This Schiff

Everyone's favorite TV lawyer right now is Adam Schiff.

The former federal prosecutor and House Intelligence Committee chair has won praise from the right and left for his performance during the Senate impeachment trial.

Taking the lead in presenting the case against Trump, Schiff has helped weave the narrative alleging corruption by Trump that he and other Democrats believe merits the president's removal from office.

Schiff has played both opener and closer in Democrats' arguments, interspersing his presentation of the evidence with powerful calls for the Senate to subpoena further evidence and witnesses for the trial.

"They risked everything, their careers," Schiff told the Senate Wednesday of the public servants who testified in the impeachment inquiry. "And yes, I know what you're asked to decide may risk yours, too. But if they could show the courage, so can we."

NBC News' Frank Thorp reported Sen. Lindsey Graham offered a compliment to Schiff after the first day of arguments on Wednesday, telling him, "Good job, you're very well spoken."

Fellow Trump ally Rep. Matt Gaetz highlighted the Democratic impeachment managers' use of TV clips during the trial, telling Politico that they're presenting it like "cable news," but saying the White House team was more like "an 8th grade book report."

Schiff has had plenty of trial practice: He was a prosecutor for the U.S. Attorney's Office for the Central District of California before running for public office.

Perhaps no one else knows the facts of the case better than him (Trump/Giuliani/Cipollone might, but that's another story). Schiff was in the room for the closed-door depositions and then chaired the public impeachment hearings with fact-witnesses for the Ukraine debacle.

Even with the platitudes, Schiff's performance still may not be enough to convince Senate Republicans to vote to remove Trump from office. Welcome to impeachment, where the rules are made up and the points don't matter!

Meanwhile In Court….

During the debate on the rules for the Senate trial, Trump's personal lawyers kept arguing that the House Democrats had to go to court for evidence in order to impeach Trump.

It's the same claim that House Republicans made throughout the impeachment inquiry. But it contradicts what Justice Department attorneys have argued to judges, on Trump's behalf, in House lawsuits seeking information about Trump.

And the House's lawyers aren't having it: Late Thursday, they filed letters with the two panels on the U.S. Court of Appeals at the D.C. Circuit overseeing cases seeking ex-White House counsel Don McGahn's testimony and Mueller grand jury information, highlighting the discrepancy in the arguments.

"In light of President Trump's argument, it is not clear whether DOJ still maintains its position that courts are barred from considering subpoena-enforcement suits brought by the House," House general counsel Douglas Letter wrote to the McGahn panel. "At the very least, President Trump's recognition that courts should resolve such suits undermines DOJ's contrary threshold arguments in this case, which seek to prevent the House and its committees from seeking judicial resolution of subpoena-enforcement disputes."

"The Executive Branch cannot have it both ways."

In a letter to the panel considering the Mueller grand jury material case, Letter reiterated the Trump lawyers' change in approach.

And he said the way the Senate's impeachment trial has gone so far proves that it is a judicial proceeding, which DOJ has argued it is not. For example, Letter wrote, Chief Justice John Roberts said the Senate is sitting as a "court of impeachment."

"Each party has filed a 'trial memorandum'; the 'record' will be transferred to the Senate; the parties may make pretrial 'motions'; the record materials may be 'admitted into evidence'; President Trump may make 'objections'; and the Chief Justice may adjudicate these objections," the letter states. "This describes a judicial proceeding."

DOJ attorney Hashim Mooppan has told a three-judge panel on the D.C. Circuit earlier this month that the federal judiciary should not risk intervening in an impeachment inquiry over the case on McGahn's testimony, warning it could undermine public trust in the courts.

DOJ lawyer James Burnham has repeatedly told judges at the U.S. District Court for the District of Columbia—in the McGahn case, in the lawsuit over the diversion of military funds for a border wall, and in the fight over Trump's tax returns—that the administration believes the House should never be able to sue the executive branch.

At least one judge, Trevor McFadden, is so worried about the standing issue that he's stayed the entire Trump tax returns lawsuit until the D.C. Circuit rules on the issues in the McGahn case.

After the House's late-night letters, it looks like DOJ might have to fill in the gap between the two stances.

What We're Reading

>> No Federalist Society or American Constitution Society Judges? Judiciary Considers Membership Ban: "Federal judges' membership in outside groups are back in the spotlight after a draft advisory opinion said they should not be members of the conservative Federalist Society or the liberal American Constitution Society. The draft opinion, which began making the rounds on Wednesday, revisits a past finding from the Judicial Conference's Committee on Codes of Conduct that said judges should not hold leadership positions in ACS, but could be a member of the organization. Calling that past reasoning 'flawed,' the draft opinion states: 'If, as we advised, holding a leadership position in the ACS could reasonably be seen as impairing a judge's impartiality, then membership in the ACS raises the same concerns.' And it finds that membership in the Federalist Society raises similar issues." [National Law Journal]

>> Judge Reggie Walton Is Fired Up (Again) in McCabe-Related FOIA Suit: "A federal judge in Washington aired broad concerns Thursday about diminishing confidence in government institutions as he grappled with secrecy surrounding the firing and criminal investigation of Andrew McCabe, a former FBI leader who was terminated in 2018 following an internal inquiry into his contacts with the news media….[U.S. District Judge Reggie] Walton, speaking in court Thursday, described the public interest in McCabe's firing as 'significant' and 'tremendous,' while also raising concerns that keeping the public 'in the dark' about the termination of a top FBI official risked undermining the bureau." [National Law Journal]

>> 'Go Find a Lawyer, Somewhere': Schiff Slams Trump Impeachment Claims Rejected by Allies: "House Intelligence Committee chairman and former federal prosecutor Adam Schiff on Wednesday kicked off the House's arguments for the removal of Donald Trump by taking a shot at the president's lawyers….'Couldn't go to Bill Barr for that opinion, couldn't even go to Jonathan Turley, their expert in the House for that opinion, no,' Schiff said Wednesday. 'They had to go outside of those experts, outside of the constitutional law to a criminal defense lawyer and professor.'" [National Law Journal]

>> 'Putin's Chef'? Jury Should Hear Nicknames in Russia Case, Prosecutors Argue: "Jurors should be allowed to hear a businessman's nickname, 'Putin's chef,' at an upcoming trial involving allegations that Russian companies and individuals fraudulently used social media accounts to sow discord in the U.S. electorate leading up to the 2016 presidential election, federal prosecutors said in a court filing Wednesday. That nickname is attached in U.S. and Russian media reports to Yevgeny Prigozhin, a businessman whom prosecutors have identified as the controlling officer of a Russian company called Concord Management and Consulting." [National Law Journal]

>> Democrats make a strategic decision in focusing on the Bidens. Trump's lawyer sees a mistake: "The House managers made a strategic decision on Thursday to focus extensive attention on the actions of former Vice President Joseph R. Biden Jr. and his son, Hunter Biden….At least one of Mr. Trump's lawyers suggested the Democrats made a mistake in focusing on the former vice president and his son. 'They have opened the door,' said Jay Sekulow, a personal lawyer for Mr. Trump and a member of his impeachment legal defense team. 'It's now relevant.'" [New York Times]

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