Justice Department Says Appeals Court Shouldn’t Referee McGahn Case

Then-White House counsel Don McGahn listens to U.S. Supreme Court nominee Brett Kavanaugh testify before a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington on Sept. 27, 2018. (Jim Bourg/Reuters)

The Justice Department (DOJ) argued on Dec. 23 that a federal appeals court shouldn’t referee a dispute between Congress and the Trump administration over the subpoena demanding that former White House counsel Don McGahn testify before the House Judiciary Committee.

In a court filing, the DOJ, which is arguing on McGahn’s behalf, addressed how the articles of impeachment against President Donald Trump will affect the McGahn case. The House approved two articles of impeachment last week against the president in a partisan vote.

In their filing (pdf), DOJ lawyers acknowledged that the articles of impeachment don’t render the legal fight in McGahn’s case moot, but argued that the impeachment vote no longer needs a speedy resolution. Oral arguments on the case are set for Jan. 3, 2020.

The department’s lawyers also suggested that it wouldn’t be proper for the court to become involved in the interbranch legal fight, because the case would affect the impeachment process.

“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 lawyers wrote. “That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial.”

“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 lawyers concluded.

McGahn, who was viewed as a key witness in then-special counsel’s Robert Mueller’s investigation, was subpoenaed by the House Judiciary Committee in April to provide documents and appear before lawmakers as part of their investigation of possible obstruction of justice by Trump—something that Mueller didn’t conclude on in his report. Trump has denied any wrongdoing.

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 DOJ to appeal the decision to the appeals court.

House lawyers also filed a response to the court order on Dec. 23, arguing that McGahn’s testimony was pertinent to the Senate impeachment trial and was required for the Judiciary Committee to perform its oversight and legislative functions and to “safeguard the integrity of America’s elections in 2020.”

The House legal team argued that McGahn’s testimony would inform the House on how to present the articles of impeachment and evidence to the Senate, while adding that that information is central to a number of the committee’s ongoing investigations into the president. They also used the same justifications to argue that an urgent resolution is necessary.

“The Committee continues to suffer harm with each additional day that it is denied access to McGahn’s testimony. The Committee has already waited eight months. The Committee should not be required to wait any longer,” the House lawyers wrote.

Trump has been resisting House Democrats’ efforts to subpoena aides and members of the executive branch from testifying before Congress as part of a slew of investigations that aimed to find information to impeach Trump.