Former White House counsel Don McGahn. | Alex Wong/Getty Images

The House is open to the prospect of impeaching President Donald Trump a second time, lawyers for the Judiciary Committee said Monday.

House Counsel Douglas Letter said in a filing in federal court that a second impeachment could be necessary if the House uncovers new evidence that Trump attempted to obstruct investigations of his conduct. Letter made the argument as part of an inquiry by the D.C. Circuit Court of Appeals into whether Democrats still need testimony from former White House counsel Don McGahn after the votes last week to charge Trump with abuse of power and obstruction of Congress.

“If McGahn’s testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly — including, if necessary, by considering whether to recommend new articles of impeachment,” Letter wrote.

It’s the first impeachment-related filing by the House since lawmakers voted, mostly along party lines, to impeach Trump over allegations stemming from efforts to pressure Ukraine to investigate his Democratic rivals. It comes just hours after the Justice Department argued that the impeachment votes undercut lawmakers’ ongoing court case demanding testimony from McGahn, who was special counsel Robert Mueller’s central witness.

In a brief filed early Monday morning, DOJ lawyers acknowledge that the House’s approval of two articles of impeachment — focused on Trump’s alleged effort to withhold aid from Ukraine and his blockade of the House inquiry — do not render moot the legal fight over McGahn.

However, the Justice Department attorneys said the House Judiciary Committee’s decision to move forward with impeachment means there’s no longer urgency to resolve the House’s case. That bolsters the Trump administration’s argument that the courts should simply butt out of the legal showdown, the DOJ filing says.

“The reasons for refraining are even more compelling now that what the Committee asserted — whether rightly or wrongly — as the primary justification for its decision to sue no longer exists,” the DOJ lawyers wrote, without elaborating on that claim.

A second Justice Department brief in a related case — the Judiciary Committee’s demand for Mueller’s grand jury evidence — suggests without basis that the Judiciary Committee’s decision to advance articles of impeachment on the Ukraine scandal have effectively ruled out any effort to impeach the president based on Mueller’s evidence, therefore rendering the matter moot.

It’s unclear why the Justice Department argues that the committee has conceded that the Mueller impeachment investigation is over when House lawyers and lawmakers have described it as ongoing and active.

House lawyers indicated in advance of last week’s committee and floor votes that the panel planned to push on with its impeachment-related investigations. Democratic lawmakers who led the House impeachment inquiry have long contended that their efforts to gather more evidence would continue and that the timing of the impeachment vote reflected the urgency of the matter, not the conclusion of the effort to obtain witnesses and documents.

Letter’s new filing emphasizes the fact that nothing precludes the House from impeaching Trump again if it unearths new evidence, though no member of Democratic leadership has suggested such a course, particularly with a looming Senate trial and the presidential primary season imminent.

Letter also notes that McGahn’s testimony could become crucial evidence in the upcoming Senate trial.

“McGahn’s testimony is critical both to a Senate trial and to the Committee’s ongoing impeachment investigations to determine whether additional Presidential misconduct warrants further action by the Committee,” he argued. Letter added that McGahn’s testimony is important aside from these matters, as the House considers legislation that might arise from the details of Trump’s conduct.

The filings landed Monday amid an ongoing struggle between Democrats and Senate Majority Leader Mitch McConnell over whether a Senate trial — whose contours remain unsettled — will include testimony from witnesses who never appeared before any House panel. Senate Democratic leader Chuck Schumer, in particular, has requested testimony from acting White House chief of staff Mick Mulvaney and former national security adviser John Bolton.

Justice Department attorneys argued in their new submission that the coming Senate trial is yet another reason for the judicial branch to stand aside.

“If this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial,” the DOJ legal team wrote. “The now very real possibility of this Court appearing to weigh in on an article of 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.’”

“This Court should decline the Committee’s request that it enter the fray and instead should dismiss this fraught suit between the political branches for lack of jurisdiction,” the Justice Department lawyers added.

The DOJ filing was one of several submissions expected Monday in response to requests the appeals court issued about an hour after the impeachment votes last week, seeking clarification of the impact of the votes on the McGahn case and a parallel legal fight for access to grand jury secrets in special counsel Robert Mueller’s report on Russian interference in the 2016 campaign.

Both of those cases are expected to be heard on Jan. 3 by partially overlapping three-judge panels. The Justice Department, which brought the cases to the appeals court, is not urging any delay of those arguments. However, the DOJ lawyers said the court shouldn’t rush to get out a decision in the McGahn case — potentially leaving a ruling until after the expected impeachment trial is complete.

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In a letter to acting White House Chief of Staff Mick Mulvaney, Oversight Committee Chairman Elijah Cummings, D-Md., Intelligence Committee Chairman Adam Schiff, D-Calif., and Foreign Affairs Committee Chairman Eliot Engel, D-N.Y., gave the White House until Oct. 18 to produce documents.

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“We deeply regret that President Trump has put us — and the nation — in this position, but his actions have left us with no choice but to issue this subpoena,” the chairmen wrote.

The subpoena was issued by the House Oversight and Reform Committee as part of Democrats’ impeachment investigation of Trump and came as The West Wing was set to allow the similar request for documents from the president’s staff to go unfulfilled, likely forcing Democrats to make good on their threat to issue a subpoena for the records.

That inquiry is looking into whether Trump pressured Ukraine to interfere in the 2020 election by freezing military aid, then urging newly elected President Volodymyr Zelensky to investigate former Vice President Joe Biden, his son Hunter and their business dealings in the Eastern European country. Democrats have claimed that the call revealed a quid pro quo in which Trump tied the request to nearly $400 million in frozen military money.

Trump has resisted Democratic attempts to produce documents and administration witnesses for the impeachment inquiry. The subpoena seems likely to escalate the clash between the two branches of government. The president said he would formally object to the impeachment investigation, even while acknowledging that House Democrats “have the votes” to proceed.

The White House was expected to send a letter to House Speaker Nancy Pelosi, D-Calif., as early as Monday arguing that Congress could not mount its impeachment inquiry without first having a vote to authorize it. The letter was expected to say the administration wouldn’t cooperate with the probe without that vote. Pelosi has said such a vote is unnecessary, claiming the House is well within its rules to pursue the inquiry without it.

“The existing rules of the House provide House Committees with full authority to conduct investigations for all matters under their jurisdiction, including impeachment investigations,” Pelosi wrote Thursday in a letter to House GOP Leader Kevin McCarthy, R-Calif., after he, too, pressed for a floor vote.

Pelosi has sought to avoid a vote on the impeachment probe for the same reason she resisted, for months, liberal calls to try to remove the president: It would force moderate House Democrats to make a politically risky vote.

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Cummings had threatened the subpoena Wednesday after the White House ignored two letters in September seeking the documents. In Friday’s letter, the chairmen warned the White House that “Speaker Pelosi has confirmed that an impeachment inquiry is underway, and it is not for the White House to say otherwise.”

The letter added that the White House’s “failure or refusal to comply with the subpoena … shall constitute evidence of obstruction of the House’s impeachment inquiry and may be used as an adverse inference against you [Mulvaney] and the President.

Earlier Friday, House Democrats sent a letter requesting documents from Vice President Mike Pence as part of the impeachment inquiry by Oct. 15.

Fox News’ Adam Shaw and The Associated Press contributed to this report.

Source: https://www.foxnews.com/politics/house-committees-subpoena-white-house-in-impeachment-inquiry

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“The president is going to build the wall,” Mulvaney said on “Fox News Sunday.” “This is going to get built with or without Congress.”

Mulvaney’s words come as another potential government shutdown looms. Lawmakers have until Friday to craft a deal that the president would sign on to.

The negotiations hit a roadblock Sunday when Democrats pushed to limit the number of migrants that the Immigration and Customs Enforcement agency can detain at one time. Many Democrats have criticized ICE for going too far in detaining immigrants who lack proper documentation but are otherwise lawful and some have advocated getting rid of the agency altogether.

Republicans have called the push to abolish ICE evidence that Democrats are for “open borders” and do not really wish to stop illegal immigration. They say ICE is essential in enforcing current U.S. immigration law.

“I don’t think the Dems on the Border Committee are being allowed by their leaders to make a deal,” Trump tweeted Sunday in response to the Democratic proposal to limit the number of ICE detainees. “They are offering very little money for the desperately needed Border Wall & now, out of the blue, want a cap on convicted violent felons to be held in detention!”

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Democrats say they proposed their cap to force ICE to concentrate its internal enforcement efforts on dangerous immigrants. Democrats have proposed reducing the current number of beds ICE uses to detain immigrants here illegally from 40,520 to 35,520. But within that limit, they want most of the beds used for people detained at the border and proposed limiting the number of beds for immigrants here illegally who are caught within the U.S. to 16,500.

“I promise you this. Donald Trump is not going to sign any bill that reduces the number of bed spaces available to hold violent offenders who come across our border. He can’t do that. He won’t do that,” Sen. Lindsey Graham, R-S.C., said on Fox News’ “Sunday Morning Futures.”

Graham said such a move “incentivizes more violent people to come to the United States” and “at the end of the day, they’re making it impossible for the president to work with them if they’re reducing bed spaces for violent offenders.”

Sen. Richard Shelby, R-Ala., was not optimistic about the chances of reaching an agreement ahead of Friday’s deadline.

“I think talks are stalled right now,” Shelby told “Fox News Sunday” host Chris Wallace. “I’m not confident we’re going to get there.”

On the other side of the aisle, Sen. Jon Tester, D-Mont., told Wallace on Sunday that, “We are not to the point where we can announce a deal.”

If lawmakers fail to find common ground and the president is not presented with a bill that he finds acceptable, Trump is prepared to reject it and risk another shutdown, Mulvaney said.

“The government shutdown is technically still on the table,” he said. “We do not want it to come to that, but that option is still open to the president and will remain so.”

When asked if Trump – who wants $5.7 billion for a border wall – would sign a funding bill that only appropriated between $1.3 and $2 billion for construction, Mulvaney said, “We’ll take as much money as you can give us and then we will go off and find the money someplace else legally.”

Congressional Democrats have steadfastly refused to approve the $5.7 billion requested by Trump for the wall, and House Speaker Nancy Pelosi has insisted the wall won’t be built. In December, the impasse led to a record 35-day government shutdown.

Mulvaney said Trump could get some of the money without Congressional approval and with declaring a national emergency through “reprogramming,” which would permit the president to move around previously allocated defense funds.

Border wall: How congressional Democrats could fight a national emergency declaration

A number of Republican lawmakers, including Senate Majority Leader Mitch McConnell, R-Ky., oppose the idea of declaring a national emergency to get the money because they say it would subvert congressional authority and establish a bad precedent. Despite that opposition, Mulvaney said such a move is “absolutely on the table.”

“Yes, there’s a lot of Republicans who don’t want to do it. Face it, the president doesn’t really want to do it. That’s why we had to go through the shutdown,” Mulvaney said. “He would prefer legislation because it’s the right way to go and is the proper way to spend money in this country.

“But if that doesn’t happen, the president proceeds. His number one priority is national security. He will then look at the National Emergencies Act as a way to do his job,” he added.

Contributing: The Associated Press

State of the Union: Politically wounded from the shutdown, Trump faces a tough time with his agenda

More: After fleeing violence at home, migrants wait patiently at Texas border to enter U.S.

Source: https://www.usatoday.com/story/news/politics/2019/02/10/border-wall-negotiations/2830515002/

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President Trump on Dec. 14 tweeted that White House budget director Mick Mulvaney would become acting chief of staff. Photo by Monica Akhtar — The Washington Post

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