Trump, Democrats risk unintended consequences with impeachment arguments

Both the White House defense team and Democrats seeking President TrumpDonald John TrumpFauci says his meetings with Trump have 'dramatically decreased' McEnany criticizes DC mayor for not imposing earlier curfew amid protests Stopping Israel's annexation is a US national security interest MORE’s removal have advanced arguments at the impeachment trial that risk undercutting their own interests.

The latest example came Thursday when House prosecutors spent considerable time deconstructing a theory involving Democratic presidential candidate Joe BidenJoe BidenStopping Israel's annexation is a US national security interest Trump slams Biden staff for donating bail money to protesters At least 4,400 people arrested in connection with protests: report MORE — a decision they may come to regret.

The intent was to raise — and then dispatch with — GOP corruption claims against Biden and his son Hunter. Democrats painted the allegations as a sideshow with no legitimate basis or connection to Trump’s impeachment trial in the Senate.

But that strategy may backfire, as Senate Republicans wasted no time in seeking to use Democrats’ focus on the Bidens to their advantage.

“As a result of this decision,” Sen. Ted CruzRafael (Ted) Edward CruzThe Hill's Morning Report - Presented by Facebook - Trump tweets as tensions escalate across US AIPAC cancels 2021 policy conference due to COVID-19 GOP deeply divided over Trump's social media crackdown MORE (R-Texas) said Thursday, “Hunter Biden is not only relevant, he is now critical.”

Cruz reiterated Republicans’ longstanding call for an investigation into Burisma, the Ukrainian energy company where Hunter Biden served on the board while his father helped to lead Ukraine policy under President Obama. Burisma has been linked to accusations of money laundering, fraud and tax evasion.

It remains to be seen whether any witnesses will testify at the impeachment proceedings. But if Republicans pursue subpoenas against the Bidens, House managers may have a harder time convincing the Senate their testimony is irrelevant following their lengthy defense of the former vice president and his son.

“I don't know how many times it was said by the managers that the Biden conflict of interest allegation has been debunked,” Judiciary Committee Chairman Lindsey GrahamLindsey Olin GrahamThe Hill's Morning Report - Presented by Facebook - Trump tweets as tensions escalate across US This week: Senate reconvenes as protests roil nation amid pandemic Trump asserts his power over Republicans MORE (R-S.C.) told reporters Thursday. “When the managers tell me this has been looked at and debunked, (I say) by who?”

“That is becoming relevant because they have talked about it almost 50 times, that the president had no reason to believe that anything improper occurred in the Ukraine with the Bidens, and he was just out to create a political advantage,” Graham added.

Graham later said he would oppose calling Hunter Biden as a witness, but other Senate Republicans, including Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellThe Hill's Morning Report - Presented by Facebook - Trump tweets as tensions escalate across US This week: Senate reconvenes as protests roil nation amid pandemic For city parks: Pass the Great American Outdoors Act now MORE (R-Ky.), have opened the door to subpoenaing him.

That Democrats’ plan to marginalize the Bidens might help Republicans secure their testimony might come as no surprise, considering how big a factor the law of unintended consequences has been throughout the impeachment.

What started last July as a 30-minute phone call, in which Trump asked the Ukrainian president to investigate his political rivals, would later lead to Trump becoming only the third president in American history to be impeached.

Trump’s impeachment inquiry and Senate trial have seen other instances where a strategy designed to fortify one position has created vulnerabilities on the flanks.

On the first day of the impeachment trial, Trump’s personal attorney Jay SekulowJay Alan SekulowAppeals court rejects Trump effort to throw out emoluments case Supreme Court divided over fight for Trump's financial records   Meadows joins White House in crisis mode MORE scolded Democrats for pursuing impeachment with undue haste. He rebuked House Speaker Nancy PelosiNancy PelosiThe Hill's Morning Report - Presented by Facebook - Trump tweets as tensions escalate across US Judd Gregg: Biden — a path to the presidency, or not Trump asserts his power over Republicans MORE (D-Calif.) for moving forward before a judge determined whether witnesses and documentary evidence could be compelled.

While Sekulow’s argument may have bolstered Trump's case in the Senate, it could undermine the administration's legal position in two major federal cases now playing out in court.

Addressing the looming fight over impeachment witnesses, Sekulow on Tuesday argued forcefully that the proper forum to resolve issues around witness subpoenas is not the Senate, but the courts.

“The president’s opponents in their rush to impeach have refused to wait for complete judicial review,” Sekulow said. “We're acting as if the courts are an improper venue to determine constitutional issues of this magnitude? That is why we have courts. That is why we have a federal judiciary.”

For their part, Democrats contend that the White House’s blanket refusal to cooperate with numerous congressional requests amounted to obstruction of Congress, which formed the basis for the second impeachment article against Trump.

Yet even throughout Trump’s impeachment, House Democrats have remained locked in tense court fights with the White House over another set of witnesses and documents. These disputes concern access to testimony from former White House counsel Don McGahn and grand jury materials from former special counsel Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE’s Russia probe.

In a pair of court filings Thursday night, House Democratic lawyers in the McGahn and Mueller grand jury materials cases used Sekulow’s impeachment argument as a cudgel against Trump.

The administration’s legal position in the McGahn case is that courts lack the power to referee subpoena fights between Congress and the White House. The Justice Department (DOJ), arguing for Trump, has urged the court to leave the political branches to settle their own disputes.

Lawyers for the Democratic-led House Judiciary Committee pounced on the inconsistency.

“President Trump’s arguments in the impeachment trial contradict DOJ’s assertion in this case that the Committee may not seek to enforce its subpoenas in court,” reads the court filing, which quotes Sekulow’s remarks in the Senate.

“In light of President Trump’s argument, it is not clear whether DOJ still maintains its position that courts are barred from considering subpoena-enforcement suits brought by the House,” it continues. “The Executive Branch cannot have it both ways.”