Trump's Lawyers Have Muddied Their Own Arguments Against Subpoenas

The president's lawyers previously said Democrats shouldn't go to court; now they say the opposite.

WASHINGTON ― In President Donald Trump’s Senate impeachment trial, his lawyers seemingly reversed their position on whether it’s OK for Democrats to sue the administration over a subpoena. 

Last year, House Democrats issued dozens of formal legal requests for documents and testimony from the Trump administration, and in a few cases they filed lawsuits after the administration refused to comply. The president’s counsel has argued that there’s “no constitutional or statutory basis” for Congress to ask courts to enforce subpoenas.

Democrats have also issued several subpoenas as part of their investigation into the president’s Ukraine scandal, but instead of suing the administration for its blanket refusal to comply, they impeached the president for obstruction of Congress in addition to abuse of power. 

In the Senate trial this week, Trump’s lawyers are now arguing that Democrats should have gone to court rather than impeach the president. 

“If there is a dispute between the people’s House and the president of the United States over the availability of documents or witnesses ― and there is in each and every administration ― then go to court,” Ken Starr, a guest lecturer for Trump’s legal defense, said Monday, expanding on an argument the president’s team presented in its initial written response to the articles of impeachment last week. 

“It really is as simple as that. I don’t need to belabor the point,” Starr said, before repeating  “go to court” two more times. 

Attorney Ken Starr speaks as U.S. President Donald Trump's legal team resumes its presentation of opening arguments in Trump'
Attorney Ken Starr speaks as U.S. President Donald Trump's legal team resumes its presentation of opening arguments in Trump's Senate impeachment trial in this frame grab from video shot in the U.S. Senate Chamber at the U.S. Capitol in Washington, U.S., Jan. 27, 2020.

Now Democrats are using the switch to burnish their earlier demands for documents and interviews they already requested. Lawyers for the House of Representatives on Tuesday told the judge overseeing the Democrats’ lawsuit for the president’s tax returns, which also involved a subpoena, that the court “should not condone President Trump’s maintaining these clearly inconsistent positions, where he is a party both in this case and in the Senate impeachment trial.” 

For months, District Judge Trevor McFadden has been weighing whether the District Court of the District of Columbia will even consider the merits of the Democrats’ tax return complaint. Trump’s lawyers said the court should just stay out of it, and earlier this month McFadden put the case on hold while an appeals court sorts out whether the House has standing to sue over a different subpoena, one seeking testimony from former White House counsel Don McGahn. In both cases, the question is whether the House has standing to sue. 

Democrats are tired of waiting, saying in Tuesday’s motion that the tax case “has been stalled long enough.” A longstanding federal tax disclosure law says the Treasury Department is supposed to hand over any tax records that congressional tax committees request, but the Trump administration refused to give the House Ways and Means Committee copies of the president’s personal and business returns last year. Democrats then issued a subpoena and ultimately sued.

In its motion to dismiss the tax case last year, lawyers for the Justice Department and for the president himself argued that there’s no way the courts should get involved, that Congress should haggle directly with the administration to get what it wants. 

“There is no constitutional or statutory basis for a Committee of the House of Representatives to take on the role of enforcing its subpoenas in the Federal courts where the executive branch has decided not to do so,” the president’s lawyers told the court.  

If McFadden, a Trump appointee, agrees that Democrats can’t sue, then he can throw out the case for lack of jurisdiction instead of having to decide it on the merits.

In their motion Tuesday, Democrats alerted Judge McFadden to what the president’s people are telling the Senate. 

“Defendants’ position that the House is constitutionally barred from judicial enforcement of its subpoenas has now been disavowed by President Trump in the Senate impeachment trial,” the Ways and Means Committee said, adding that McFadden should lift his stay and make a decision on the case. 

A key difference between the McGahn case and the tax case, they argued, is that Democrats lodged their initial request for the president’s taxes under a longstanding federal law giving Congress access to private tax information. 

Trump deputy counsel Patrick Philbin acknowledged Monday that the Trump administration has taken seemingly contrary positions, but he said that since the McGahn case is still ongoing, Democrats can’t complain.

“They are in court right now asserting that mechanism [suing] in the McGahn case and simultaneously saying that, well, they don’t have to bother with that mechanism; they can jump to impeachment,” Philbin said on the Senate floor. 

The appeals court will soon rule on whether McGahn has to testify. Last week Democrats sent a letter putting the court on notice about the administration’s contradictory arguments; the administration responded that it was actually Democrats trying to have it both ways by simultaneously doing impeachment and litigation.

Alexander Reinert, a professor at the Benjamin N. Cardozo School of Law, said it’s possible that unlike in electoral politics, taking wildly different positions could have negative consequences in a federal court. 

“In general, I think judges do not like it when parties take contradictory positions in different legal proceedings, particularly where, as in this case, they are doing so contemporaneously and about the exact same topic,” Reinert said in an email. “It is one thing for parties to change their position over time on a legal question (especially where there has been a change in counsel) ― but in this case the president appears to be taking a disingenuous position in at least one of the proceedings.”