There's a core contradiction in Trump's defense against the obstruction of Congress charge

There's a core contradiction in Trump's defense against the obstruction of Congress charge

President Donald Trump's lawyers are tying themselves in knots to defend him from his impeachable conduct.


On Tuesday, as arguments in Trump's Senate impeachment trial finally began, a core contradiction in the president's legal position regarding the second article of impeachment came into view.

The second article of impeachment charges the president with obstruction of Congress during the course of its inquiry into the Ukraine scandal. House Democrats found that, as they were trying to get to the bottom of that matter, the president and the administration — clearly at his direction — refused to hand over documents or comply with subpoenas for testimony as required. When it became clear Trump was launching a blanket effort to block these inquiries and requests, Democratic investigators warned at the time that these actions could prompt their own separate article of impeachment, as they eventually did. Though Democrats concluded that they had obtained sufficient evidence to charge Trump with abusing his power, they did not get nearly as much of the information as they believed they had a right to, so they also charged him with obstructing the investigation.

Some critics of the Democrats' investigation — even those who agree Trump should be removed from office — have been critical of the obstruction of Congress charge, arguing that the House should have taken the administration to court to resolve issues regarding subpoenas. Democrats, on the other hand, argued that going to court could have dragged the process out past the next election and that regardless, Congress is given the sole authority to determine matters of impeachment.

On Tuesday, Trump's lawyers, including Jay Sekulow, argued on the floor of the Senate that Democrats should have gone to the courts rather than charging obstruction.

"It is why we have courts," Sekulow said of disputes between Congress and the administration.

But at the same time, Trump administration lawyers have been making the exact opposite argument before the courts. As the U.S. Justice Department has argued that it doesn't have to comply with Congress's demands in the impeachment inquiry, its lawyers have told federal judges that they just shouldn't be involved in a conflict between the executive and the legislative branch. The executive branch and legislative branch should work out the conflict on their own, they said.

Politico reporter Kyle Cheney pointed out that in a recent court filing as part of an argument with Congress, the Trump administration said:

The now very real possibility of this Court appearing to weigh in on an article fo impeachment at a time when political tensions are at their highest levels—before, during, or after a Senate trial regarding the removal of a President—puts in stark relief why this sort of interbranch dispute is not one that has "traditionally thought to be capable of resolution through the judicial process."

And in a recent appeals court hearing on cases regarding the House's attempt to get grand jury material from the Russia investigation and former White House Counsel Don McGahn's testimony, a Justice Department attorney urged the court to stay out of the dispute.

"The court should not be refereeing who’s right or wrong about whether the president is acting totally unusually or Congress is acting totally unusually," said Deputy Assistant Attorney General Hashim Mooppan, who was appointed by Trump, according to Politico. He said there were "political remedies" — as opposed to judicial remedies — to such disputes.

Mooppan wouldn't say whether impeachment was an appropriate way to resolve the dispute between the House and the administration. But impeachment is at its heart a political check on presidential abuses, and lawmakers get to decide what offenses fit the bill. And Mooppan did clearly say that it's not the court's role to get involved at all — completely contradicting Sekulow and others' arguments that the House should have spent more time taking their dispute to the judicial branch, rather than impeaching Trump for obstruction.

Rep. Adam Schiff (D-CA), the lead impeachment manager, pointed out the contradiction himself on the Senate floor.

"While these lawyers are here before you today saying the House should have gone to court, they're in court saying the House may not go to court to enforce its subpoenas!" he said. "I kid you not! Other lawyers, maybe not the ones at this table, but other lawyers for the president, are in court saying the exact opposite of what they're telling you today."

Watch the clip below:

Cody Fenwick is a senior editor at AlterNet. He writes about politics, media and science. Follow him on Twitter @codytfenwick.

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