Can impeach over defied subpoenas

In contrast with Trump legal team, Justice Department lawyer says House can impeach over defied subpoenas

By Marshall Cohen

A Justice Department lawyer said Thursday in federal court that the House can impeach a president over ignored subpoenas, a noted contrast to what lawyers for President Donald Trump are arguing at his Senate impeachment trial this week.

Asked by a federal judge what the House can do to enforce its subpoenas, Justice Department lawyer James Burnham said without hesitation that the House can use its impeachment powers, among other options, like withholding appropriations.

Trump is fighting charges of abuse of power and obstructing Congress for ordering his aides to defy subpoenas. They've argued in the Senate that the obstruction charge is preposterous, because Trump was lawfully protecting the executive branch in a dispute with Congress over documents and testimony.

In response to Burnham's suggestion about impeachment, Judge Randolph Moss responded, "that is really not a great state of affairs for this country," if the House should impeach the President over every subpoena that his administration ignores.

The topic came up in a court hearing about the 2020 census. The House Oversight Committee sued the Justice Department and Commerce Department in November, asking a judge to enforce its subpoenas for documents. The case revolves around the controversial and ultimately unsuccessful attempt by the Trump administration to add a citizenship question to the census.

Even though the case isn't about impeachment, the judge's actions could influence other impeachment-related cases. Several cases on related issues are currently being litigated.

Moss repeatedly pressed Burnham to explain what the House can do if a subpoena is ignored -- and if they don't have many options, the subpoenas are more like voluntary requests. The Justice Department has argued that the House can't ask the courts to enforce subpoenas.

Throughout the impeachment inquiry, Trump's lawyers urged senators to acquit Trump on the obstruction charge, which House Democrats approved after Trump told senior aides not to testify, even those with firsthand knowledge in the Ukraine affair. He also directed the State Department and Pentagon, and other agencies, not to hand over subpoenaed documents.

"Mere assertion of a privilege or objection in a legitimate interbranch dispute is a constitutional prerogative," Trump lawyer Robert Ray said Monday. "It should never result in an impeachable offense for abuse of power or obstruction of Congress."