Judge Randolph Moss. Photo: Diego M. Radzinschi/ALM.

A federal judge in Washington pushed back Thursday against the Trump administration's argument that courts lack authority to resolve disputes between Congress and the executive branch, questioning the Justice Department's assertion that the House should use "political tools" rather than lawsuits to enforce subpoenas seeking records and testimony.

As President Donald Trump's impeachment proceeded just blocks away in the Senate, U.S. District Judge Randolph Moss of the District of Columbia appeared struck by the Justice Department's claim that the court should play no role in the House's pursuit of records related to the administration's now-abandoned bid to include a question about citizenship status on the 2020 census. Trump's impeachment lawyers have insisted the courts do have a role.

On Thursday, echoing arguments from other recent cases over House oversight requests, Justice Department attorney James Burnham said the separation of powers outlined in the Constitution gave the courts no jurisdiction in the standoff over the census records. Rather than file lawsuits, Burnham said, the House could leverage its legislative and appropriations authority—even the power of impeachment—to pressure the administration to provide records.

"Is that really what the Framers had in mind?" Moss asked.

"If you think impeachment is the answer here," the judge added, "that really is not a good state of affairs for our country."

The argument played out against the backdrop of Trump's impeachment trial, where the president's lawyers have appeared to contradict the Justice Department's claim that Congress can never go to court against the executive branch.

Chairman Adam Schiff (D-CA) on Nov. 19, 2019. Photo: Diego M. Radzinschi / ALM

In the Senate trial, Burnham's argument quickly drew a reaction from U.S. Rep. Adam Schiff, one of the House managers arguing for Trump's conviction.

Schiff, who leads the impeachment inquiry as chairman of the House Intelligence Committee, drew laughter at the start of his remarks when he stated "you can't make this stuff up." The California Democrat noted DOJ has faced questions about how its stance in court appears contradictory to the arguments Trump's lawyers are making at the impeachment trial.

"I didn't think they'd make it on the same day," Schiff said.

During Thursday's arguments in court, House lawyer Megan Barbero noted the apparent contradiction, saying that Trump's defense team at his impeachment proceedings has argued that Democrats should have gone to court to obtain more evidence before accusing him of abuse of power and obstruction of Congress.

Burnham disputed that Trump's impeachment lawyers had contradicted the Justice Department's arguments. Moss at one point suggested that Trump and the House were each trying to have it both ways: the House wanting to impeach Trump and go to court against the administration, while Trump seeks to avoid a conviction at his Senate trial and his Justice Department pushes to keep Congress from suing over subpoenas.

"We are hypocrites, and they are hypocrites, I guess," Burnham joked.

For Burnham, Thursday's argument marked the end of his year-long tenure as the head of the federal programs branch of the Justice Department's civil division, a visible litigation role requiring frequent court appearances in defense of the administration. Burnham is stepping down from that role to become an adviser to Attorney General William Barr and is set to begin clerking for Justice Neil Gorsuch on the U.S. Supreme Court later this year.

Sipping a Diet Coke throughout the three-hour hearing, Moss pressed Burnham about his broad claim that the House cannot go to court against the administration. Burnham said it would mark a "revolutionary change in the relationship between the branches" if the House could turn to the courts to resolve oversight disputes.

"These cases will multiply like rabbits," Burnham said, drawing a laugh from House general counsel Douglas Letter.

Douglas Letter, general counsel to the U.S. House of Representatives. Photo: Jason Doiy/ALM

Moss said he was "still puzzling through the issue" of the House's ability to take the executive branch to court but suggested that judges should be able to step into interbranch disputes as a "last resort." Still, he said it is best for courts to "stay out of those disputes" and allow Congress and executive branch to resolve standoffs on their own.

Earlier in the hearing, House lawyer Adam Grogg argued that lawmakers needed records from the Justice Department and Commerce Department to "protect the 2020 census and future censuses," saying the citizenship question threatened to compromise the accuracy of the decennial survey. In July, the House voted to hold Barr and Commerce Secretary Wilbur Ross in contempt over their departments' refusal to turn over records related to the failed bid to include a citizenship question on the upcoming census.

House Democrats, joined by lawyers from Debevoise & Plimpton, sued for the records months later, claiming that the Trump administration was refusing to turn them over in violation of a subpoena.

"There can be no question why the committee is concerned," Grogg said Thursday, referring to the House Committee on Oversight and Reform.

Moss questioned whether the administration and Congress had, in fact, reached an impasse in negotiations over the census records and cited appeals court precedent that, he said, made it "pretty darn clear" that judges should avoid stepping into interbranch disputes.

 

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