Counsel for the US House Judiciary Committee sent a letter to the US Court of Appeals for the District of Columbia Circuit on Tuesday informing the court that President Donald Trump’s lawyers had made arguments during the impeachment trial that directly contradicted those they made in its ongoing case.
Last year the committee subpoenaed grand jury materials from the Mueller investigation to be handed over by the Department of Justice (DOJ). The administration refused to turn them over, prompting the committee to sue. In the case, which is now on appeal at the DC Circuit, the Department of Justice (DOJ) argued that impeachment proceedings could not justify the subpoena because they are not “judicial proceedings.”
However, as the committee’s Tuesday letter points out, Trump’s defense attorney Ken Starr asserted during the Senate impeachment trial on Monday that during impeachment “the Senate is a court. … We are not a legislative chamber during these proceedings. We are in a tribunal. We are in court.” The committee’s letter tells the DC Circuit that DOJ’s “principal argument” in the case before it “cannot be reconciled with the President’s position in the impeachment.” In an earlier letter to the DC Circuit, the DOJ had argued that the rule governing grand jury materials “requires proceedings before a court, not the Senate.”
Given the contradiction, the committee noted that the “DOJ may wish to withdraw its argument that a Senate impeachment trial does not qualify as a judicial proceeding.” The court heard oral arguments in the case on January 3, and these subsequent communications seek to clarify the issues before the court decides the case.