Appeals Court Orders Rehearing on Don McGahn’s Case

March 13, 2020 Updated: March 13, 2020

A federal appeals court has approved a request from the U.S. House of Representatives for a new hearing in their effort to compel former White House counsel Don McGahn to testify before Congress.

The full panel of the U.S. Court of Appeals for the District of Columbia granted the House Judiciary Committee’s petition for rehearing en banc—or before the full court—in an order on Friday (pdf), just two weeks after a three-judge panel ruled that McGahn did not have to comply with the committee’s subpoena. Friday’s order also vacates the previous ruling issued on Feb. 28 (pdf).

A hearing or rehearing before the full court, or en banc, is not ordinarily ordered unless “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions” or “the proceeding involves a question of exceptional importance.”

McGahn, who was viewed as a key witness in then-special counsel’s Robert Mueller’s Russia investigation, was subpoenaed by the committee in April to provide documents and appear before lawmakers as part of the investigation into alleged obstruction of justice by President Donald Trump—something that Mueller failed to establish in his investigation. Trump has denied any wrongdoing.

House Democrats have launched a slew of investigations, which included the subpoena of McGahn, in an effort to find information that could lead to the impeachment of the president.

The White House blocked his appearance in May, asserting executive privilege over the documents. This prompted House Democrats to subsequently sue McGahn in August in an attempt to enforce the subpoena.

In November, a district court judge ruled that McGahn must testify before the House, saying that executive branch officials are “not absolutely immune” from the compulsory congressional process, even if the president expressly directs the official’s non-compliance. This prompted the Justice Department (DOJ) to appeal the decision to the appeals court.

The appeals court ruled 2-1 on Feb. 28 that McGahn was not required to testify, agreeing with the DOJ’s argument that the Constitution bars federal courts from resolving disputes between the legislative and executive branches.

“If federal courts were to swoop in to rescue Congress whenever its constitutional tools failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual ‘overseer[s]’ of our elected officials. That is not the role of judges in our democracy, and that is why Article III compels us to dismiss this case,” Judge Thomas Griffith, a President George W. Bush appointee, wrote in the majority opinion.

Throughout the case, DOJ attorneys have been arguing that the federal court should not referee the dispute between Congress and the Trump administration. Meanwhile, the House attorneys’ case was that the information provided by McGahn would assist with informing how the then-Senate impeachment trial against the president would proceed. The attorneys added that the testimony was also required for the committee to perform its oversight and legislative functions. Trump was acquitted of the two impeachment charges during the Senate trial in early February.

Friday’s decision comes three days after the same court ruled that House Democrats can have access to grand jury materials from Mueller’s investigation into Russian interference in the 2016 presidential election.

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 on March 10 to uphold a lower court’s decision to give the House Judiciary Committee access to grand jury information redacted from Mueller’s 448-page report, including transcripts or exhibits referenced in the redactions.

Judges Gregory Katsas and Neomi Rao did not participate in Friday’s decision. Oral arguments for the rehearing is scheduled for April 28.

Follow Janita on Twitter: @janitakan