“It is President Trump’s view that the House should have come to court,” House lawyer Meghan Barbero said, citing arguments from Trump lawyers Jay Sekulow and Kenneth Starr faulting the House for failing to initiate court action to enforce subpoenas and instead impeaching Trump for defying Congress’ demands for information.

Justice Department attorney James Burnham insisted there was no conflict, and he played down the arguments from Trump’s attorneys, saying they were simply saying that if the House viewed the courts as a venue to resolve such issues, they should have seen that option through rather than rushing impeachment articles to the Senate.

“All they are saying is the House can’t have it both ways,” Burnham told U.S. District Court Judge Randolph Moss, an appointee of President Barack Obama.

Earlier in the hearing, Burnham repeated Justice Department arguments that the House isn’t powerless to enforce its subpoenas because of its ability to pass legislation, withhold appropriations or pursue impeachment.

However, Moss said it was “not a very good state of affairs for the country” to resort to impeachment in every subpoena fight.

Burnham’s argument that one remedy open to Congress for defiance of subpoenas is impeachment quickly traveled the few blocks to the Capitol, where Rep. Adam Schiff (D-Calif.), the lead impeachment manager and chairman of the House Intelligence Committee, suggested that the White House was engaged in a disingenuous shell game.

“The judge says, ‘If the Congress can’t enforce its subpoenas in court, then what remedy is there?’ and the Justice Department lawyer’s response is ‘impeachment.’ Impeachment,” Schiff said incredulously. “You can’t make this up. I mean, what more evidence do we need of the bad faith of this effort to cover up? I said the other day: They’re in this court making this argument [and] they’re down the street making the other argument. I didn’t think they’d make it the same day.”

Other arguments leveled by the Justice Department at the hearing on the census-related documents could also be problematic if the Senate decides to call witnesses and an executive privilege fight ensues, as Trump and his lawyers are threatening. Any effort by Trump to take that to court is sure to draw criticism that he is being duplicitous, or at a minimum contradicting Justice Department lawyers.

Nevertheless, Burnham was emphatic that the best course is for the courts to swear off such disputes across the board. “We’re happy to take the deal where the courts are not involved,” he said.

Burnham said opening the door to suits by Congress against the executive branch would result in a flood of litigation. “That will be a revolutionary change in the relationship between the branches,” he said. “These cases will multiply like rabbits.”

Moss said he was not convinced that was true. He also said one could view the threat of going to court as an incentive for the two sides to negotiate. “You still need something at the end of the day where there’s some trigger,” the judge said.

Such a ruling would be in line with similar decisions from three other District Court judges in the past decade or so who rejected the Justice Department’s position that such disputes were beyond the purview of the courts. The D.C. Circuit Court of Appeals has not squarely addressed the issue, but is expected to do so soon in a case stemming from a House subpoena demanding testimony from former Trump White House Counsel Don McGahn. House lawyers have also tried to use the Trump lawyers’ impeachment arguments against the Justice Department in that case.

Moss, who served as head of the department’s Office of Legal Counsel during the Clinton administration, seemed chafed by the department’s decision to ignore published opinions by then-OLC chiefs Ted Olson in 1984 and Charles Cooper in 1986 that appear to say it is viable for Congress to sue in federal court to enforce its subpoenas.

Moss said it was odd that the Justice Department was in court contradicting those opinions — from highly esteemed conservative attorneys and advocates of robust executive power — without having those assessments formally revisited by the Office of Legal Counsel.

Initially, Burnham brushed the query aside with a quip.

“The ’80s were a wild time, Your Honor,” the Justice Department lawyer joked.