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Impeachment inquiry likely to move faster than House lawsuits, making some moot

Intelligence Committee may not go to court if administration stonewalls its subpoenas

House Intelligence Chairman Adam B. Schiff plans to remain in Washington through part of the break to schedule hearings and witness interviews and potentially prepare subpoenas. (Tom Williams/CQ Roll Call)
House Intelligence Chairman Adam B. Schiff plans to remain in Washington through part of the break to schedule hearings and witness interviews and potentially prepare subpoenas. (Tom Williams/CQ Roll Call)

House Democrats expect their impeachment inquiry to outpace ongoing court cases that were once seen as critical to their investigations into President Donald Trump.

That means some of those lawsuits — teed up as major separation-of-powers battles between the House and the Trump administration — could fizzle out or end up being dropped.

[Democrats focusing impeachment inquiry on Trump pressuring Ukraine]

Speaker Nancy Pelosi has not set a deadline for the impeachment inquiry, but she said Friday on MSNBC’s “Morning Joe” that “it doesn’t have to drag on” and that it would likely end before various court cases, such as those seeking the president’s financial records and tax returns.

“This probably would be done before the courts,” the California Democrat said of the impeachment inquiry. “Who knows the timing of the courts … but looking at the material that the administration is giving us, they are actually speeding up the process.”

The “material” Pelosi was referring to is a partial transcript of a July 25 phone call between Trump and his Ukrainian counterpart Volodymyr Zelenskiy that shows the president asking the foreign leader to investigate a potential 2020 opponent, former Vice President Joe Biden, and his son, as well as a whistleblower complaint alleging White House lawyers and officials tried to “lock down” the call. 

Maryland Democrat Jamie Raskin, a member of the House Judiciary Committee that would draft any articles of impeachment, said Democrats “don’t necessarily need to wait on all of the litigation.”

“If everything we’ve seen in the last few days turns out to be the case — and it seems as if the president is pretty much admitting it — there is overwhelming evidence of high crimes and misdemeanors that we can act on now,” he said.

The whistleblower complaint and Trump’s call with Zelenskiy have become the primary focus of the “official” impeachment inquiry Pelosi announced Tuesday. 

Before those revelations, six House committees had spent much of the year investigating an array of allegations against Trump. When the administration defied subpoenas, the committees filed lawsuits that are still winding their way through the courts.

The cases include House efforts to obtain Trump’s financial records and tax returns, grand jury materials from the special counsel’s report and testimony from former White House counsel Don McGahn. The legal actions, in various stages before the district court in Washington, are unlikely to be settled for months — or much longer if the losing side appeals all the way up to the Supreme Court.

But the House may decide to drop some of its lawsuits if the chamber advances articles of impeachment against Trump before the cases conclude. Most Democrats predict the chamber will decide whether to impeach Trump before the end of the year.

“If the Judiciary Committee makes recommendations for articles of impeachment to the full House and they are passed by the full House, then that litigation will no longer be relevant,” House Judiciary member David Cicilline of Rhode Island said.

Raskin, however, predicted that many of the cases would continue. 

“You’d almost have to look at each case to determine which had been mooted out and which have not. Most of them are going to be live cases, even if the president is impeached and removed. But there are a lot of ifs there,” he said. 

Case statuses

There are half a dozen cases that prior to last week Democrats frequently cited as key to their impeachment considerations. Here’s where they stand:

  • A panel of the U.S. Court of Appeals for the District of Columbia Circuit heard arguments in July on Trump’s lawsuit to stop a House Oversight and Reform Committee subpoena for financial records from the president’s accounting firm, Mazars USA. The panel could decide at any time.
  • The U.S. Court of Appeals for the 2nd Circuit heard arguments in a similar case over a subpoena for records from Deutsche Bank and Capital One, and could rule at any time.
  • A district court judge is set to rule after Sept. 30 on the Trump administration’s motion to dismiss the House Ways and Means Committee’s lawsuit to get Trump’s tax records. The case was filed in July.
  • The D.C. Circuit is also considering whether Democratic members of Congress can pursue their lawsuit alleging the president violated the emoluments clause of the Constitution. The lawsuit seeks to delve into Trump’s vast business interests and determine whether he must get congressional approval before accepting payments or gifts from foreign governments.
  • A district judge has set an Oct. 8 hearing for the Judiciary Committee’s application to obtain the grand jury materials in former special counsel Robert S. Mueller III’s investigation. The case was filed in July.
  • The Judiciary Committee’s effort to quickly win its lawsuit to force McGahn to testify, filed in August, doesn’t get a hearing until Oct. 31 in district court.

The latter two cases are the most directly tied to impeachment. The Judiciary Committee argued in the application for the grand jury information that it needed the information because it was considering whether to pursue articles of impeachment against Trump. And the panel is trying to get the courts to compel McGahn’s testimony because he’s a key fact witness to Trump’s alleged obstruction of justice.

House Judiciary member Mary Gay Scanlon said the lawsuits could still be useful in an attempted impeachment even if there’s no final resolution of the cases. 

“One of the points of those lawsuits is the fact that the administration was unlawfully obstructing congressional investigations, in addition to criminal investigations,” the Pennsylvania Democrat said. “So that obstruction of Congress could well be an article of impeachment.” 

Skip court this time?

The House Intelligence Committee, which is investigating Trump’s Ukraine call and the whistleblower complaint, is likely to face similar obstacles as the Judiciary Committee in obtaining witness testimony. California Democrat Adam B. Schiff, the panel’s chairman, told reporters Friday as the House left for a two-week recess that he planned to remain in Washington through part of the break to schedule hearings and witness interviews and potentially prepare subpoenas.

Later Friday, Schiff, Foreign Affairs Chairman Eliot L. Engel and Oversight Chairman Elijah E. Cummings subpoenaed Secretary of State Mike Pompeo for documents related to the Ukraine call as well as the administration’s decision to withhold U.S. military aid to the country, which the chairmen had initially requested Sept. 9. 

The chairmen also sent Pompeo a letter to schedule depositions with five State Department officials over the first two weeks of October. 

The White House may cite executive privilege and block those and any administration officials the committees try to call as witnesses from testifying, leaving the chairmen to decide whether to go court to compel testimony. 

Cicilline said he thinks the committees already have “sufficient evidence” and could opt against going to court. 

“My own view of it is if it’s clear, if the president of the administration is going to block access to witnesses and documents, the idea of protracted litigation is not acceptable,” he said. “This is too urgent a crisis for the country, and we ought to act.”

Schiff, when asked about the administration potentially stonewalling requests for witnesses or documents, seemed to leave open that possibility, saying, “That will just strengthen the case” for impeachment.

In their letter to Pompeo about the subpoena, Schiff, Engel and Cummings did not warn of court action. Rather, they said, “Your failure or refusal to comply with the subpoena shall constitute evidence of obstruction of the House’s impeachment inquiry.”

California Rep. Ted Lieu, a Judiciary member, said he doesn’t see the Intelligence Committee having the same problem combating the administration’s stonewalling as Judiciary did because of all the evidence already in the public sphere like the whistleblower complaint, the rough transcript of Trump’s call with Zelenskiy and Trump’s own statements admitting to the behavior.

“It’s a very different position where the American people will be acutely aware that the Trump administration is hiding information from Congress and the American people,” Lieu said.

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