Even as Impeachment Over Ukraine Ramps Up, House Isn't Quitting Its Other Trump Lawsuits
Democrats aren't willing to let go of their existing lawsuits seeking records and testimony on Trump, even as their focus has shifted in the past week.
September 27, 2019 at 06:29 PM
6 minute read
The original version of this story was published on National Law Journal
House Democrats won't abandon their legal quest to force the release of President Donald Trump's private financial records or former White House counsel Don McGahn's testimony even as lawmakers press an impeachment blitz that focuses on Ukraine.
Speaker Nancy Pelosi seems eager to get any possible articles of impeachment out the door, tapping the House Intelligence Committee to lead the charge as the panel investigates Trump's call with Ukranian President Volodymyr Zelensky and other claims of wrongdoing in an explosive whistleblower complaint.
As the impeachment inquiry shifts from building off allegations made in special counsel Robert Mueller's report to the new claims being handled by the intelligence committee, Democrats aren't willing to let their existing lawsuits go.
But with Pelosi and top Democrats aiming to get impeachment done in the House by the end of the year—despite Pelosi publicly saying Friday there's not set timetable for impeachment—those court cases may prove too slow to play a substantial role in those efforts.
"The consensus in our caucus is that the focus now is on this allegation, now that we're seeing the evidence of it," Pelosi said Thursday. She was referring to a July call between Trump and Zelensky in which the president asked the foreign leader to investigate political rival and Democratic presidential candidate Joe Biden and his son, Hunter Biden.
"This is the focus of the moment because this is the charge," she added. "All of the other work that relates to abuse of power, ignoring subpoenas of Congress, contempt of Congress by him, those things will be considered later."
That brisk pace could mean the House votes on impeachment before lawmakers get some of the documents and testimony they originally argued were key to starting impeachment proceedings in the first place.
Several of the cases are still in district court, while others seeking Trump's private financial records are awaiting decisions from appeals courts. Some, if not all, are predicted to go up to the Supreme Court.
A House Judiciary Committee spokesman confirmed that all of the committee's lawsuits are ongoing and active. The panel has gone to court to try and compel McGahn to testify and to obtain grand jury materials in the Mueller report.
Both of those lawsuits specifically cite the decision on whether to start impeachment proceedings in arguing that a judge should rule in the House's favor. Hearings are scheduled in the grand jury case for Oct. 8, and for McGahn's on Oct. 31.
House Judiciary Committee member Rep. Jamie Raskin, a constitutional scholar, said that if Trump were to be impeached, Democrats would have to look at each of their lawsuits and decide which ones are still relevant. He said he believed many of the cases wouldn't be killed by a potential impeachment.
"You almost have to look at each case to determine which have been mooted out and which have not," Raskin said. "Most of them are going to be live cases, even if the president is impeached and removed."
Each of the House's six committees are tasked with determining their strongest case for impeachment. Those will then be referred to the House Judiciary Committee, which will draft articles of impeachment.
Former House attorneys said that even if Trump is impeached, it doesn't necessarily cancel out those ongoing suits.
Kerry Kircher, former House general counsel under GOP Speaker John Boehner, said the legal arguments in some of the suits lie outside the course of an impeachment inquiry, like Congress' right to obtain documents needed for oversight.
For example, the House Ways and Means Committee is suing to obtain Trump's federal tax returns, arguing the documents are needed for potential legislation to change the way presidential tax audits are conducted. The House has told the court in a letter that a whistleblower has told them of potential misconduct during the auditing process, a development that could bolster their argument that the returns are needed, even if Trump is no longer in office.
If anything, the former House attorneys said, the cases could be helped by the impeachment inquiry. For example, a judge can only order the release of grand jury information in certain circumstances, like impeachment proceedings.
"I don't think the impeachment inquiry impacts those lawsuits in any sort of negative way," Kircher said. "And in the short run, it impacts them in a positive way."
Thomas Spulak, former House general counsel and a partner at King & Spalding, said judges who might otherwise be reluctant to rule on political disputes between the executive and legislative branches may be willing to get involved if it's tied to impeachment proceedings.
He also said there's no reason the House would want to drop the lawsuits, as long as the relevant investigations move forward.
"If any of those lawsuits bear really significant fruit, they would want to add that to whatever they ultimately do on impeachment," Spulak said.
Whether impeachment will happen is still up in the air. If the Democratic-controlled House passes articles of impeachment, two-thirds of the GOP Senate will have to vote to remove the president from office, an event that has never taken place in American history.
There has been speculation that GOP Senate Majority Leader Mitch McConnell might refuse to hold an impeachment trial of Trump. But McConnell has previously said that the Senate would have to hold such proceedings.
"If impeachment were to happen, the Senate has no choice," McConnell told NPR in March. "If the House were to act, the Senate immediately goes into a trial."
Read more:
White House Lawyers Worked to Obscure Memo of Trump's Ukraine Call, Whistleblower Claims
'Very Bad,' Gross Abuse,' 'Nothing Illegal.' What Lawyers Are Saying About the Trump-Ukraine Call
'Do Us a Favor': Trump Wanted Barr, Giuliani to Help Ukraine Investigate Biden
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