House Democrats say Trump’s impeachment defense undercut DOJ’s case against McGahn subpoena

House Democrats asked a federal appeals court on Thursday to swiftly order former White House Counsel Don McGahn to testify in the House, saying arguments made by President Donald Trump’s legal team during the impeachment trial have undercut the Justice Department’s position in the long-simmering legal battle over McGahn’s testimony.

The House Judiciary Committee subpoenaed McGahn in the wake of the Mueller report, before Trump’s infamous call with Ukrainian President Volodymyr Zelensky. Recently, House lawyers said they’d use McGahn’s testimony to boost their impeachment case.

The Justice Department has previously argued in court that the House doesn’t have any legal grounds to bring lawsuits to enforce subpoenas. But Trump’s lawyers argued this week in the impeachment trial that the House should have fought harder in the courts to enforce their subpoenas and the Senate shouldn’t condone their negligence by bringing in new witnesses.

The lawsuit revolves around McGahn’s potential testimony to the House Judiciary Committee. Separately, congressional Democrats are pushing for the Senate to issue subpoenas for testimony from new witness for Trump’s impeachment trial.

“President Trump’s arguments in the impeachment trial contradict DOJ’s assertion in this case that the (House Judiciary) Committee may not seek to enforce its subpoenas in court,” the House’s top lawyer, Doug Letter, wrote in a letter to the DC Circuit Court of Appeals.

The letter cited comments Trump attorney Jay Sekulow made on the Senate floor, and a brief filed by Trump’s legal team. The letter said the Trump administration was trying to “have it both ways,” and asked for a quick ruling on their appeal.

“Because the impeachment trial has now begun, the need for Mr. McGahn’s testimony is more urgent than ever,” Letter said.

House Democrats previously prevailed at the trial level. In a blistering 120-page ruling, Judge Ketanji Brown Jackson rebuked Trump’s far-reaching immunity claims, stating, “Presidents are not kings.” The Justice Department appealed the case in November.

Friday morning, the Justice Department refuted the claim.

In a letter to the appellate court, Deputy Assistant Attorney General Hashim Mooppan cited a document submitted as part of the impeachment trial earlier this week by the Trump legal team that lays out that team’s consideration of the McGahn case as they defend against a charge of obstruction in the impeachment trial.

“The impeachment trial statements excerpted by the Committee were simply expounding on the President’s position that the House cannot have it both ways; they plainly were not reversing the position that the House may not properly seek judicial enforcement of subpoenas against the Executive,” Mooppan said.

This story has been updated with the Justice Department’s response.