“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,” the brief stated, noting that they still have “ongoing impeachment investigations.”
This is exactly why I've been on the side of McConnell taking the articles up immediately.
In addition to throwing the very constitutional meaning of "impeachment" totally up for grabs, this tactic is an end run around the constitutional restriction of House investigations to matters of oversight and legislation. Now, having constituted themselves as an investigative entity, an impeachment tribunal, they claim to have full investigative powers. They are now claiming to be, in effect, more than a legislative body. They are an investigative body like the FBI. Or so they claim.
3. The articles of impeachment affect this case in two other ways. First, even before the impeachment vote, the Committee had no response to the Department’s point that a court, as a matter of equitable discretion at the very least, should refrain from entangling itself in an interbranch dispute where Congress as a whole has not made a conscious choice to clearly grant the courts subject-matter jurisdiction over the Committee’s suit and the Committee a cause of action to sue at all. See Opening Br. 46-47; Reply Br. 24. 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.
Second, the article of impeachment addressing purported obstruction of Congress relies in part on the judicial proceedings in this very case. The House Judiciary Committee’s impeachment report, for example, cites the district court’s characterization of the Justice Department’s litigating position in this case for the proposition that the President “insists that unfounded doctrines, such as absolute immunity, preclude testimony by many current and former officials who might shed light on any Presidential abuses.” H.R. Rep. No.116-__, Impeachment of Donald J. Trump, President of the United States: Report of the Committee on the Judiciary 165 (2019). Pursuing an interbranch suit in court while simultaneously pursuing impeachment, and then using that litigation as part of the impeachment proceedings, is “far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement.” Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., concurring). But that is exactly what the Committee has done. The effect of that choice is to “embroil the federal courts in a power contest nearly at the height of its political tension.” Id.
Indeed, 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. That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial. Cf. Nixon v. United States, 506 U.S. 224, 232, 235-36 (1993). 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.” Raines, 521 U.S. at 819. 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.