House Democrats and the Justice Department took the impeachment fight to court Friday, arguing over former Trump White House counsel Don McGahn’s possible congressional testimony.
At issue is whether it’s the courts’ job to enforce a congressional subpoena.
A district court judge ruled last year that McGahn must comply with the House subpoena, but DOJ lawyers fought for a stay, putting an appeal in front of a three-judge panel in Washington this week.
Attorneys for each side pitted “unprecedented refusal by the administration to comply” with subpoenas against the idea “unelected” judges would rule on the conflict.
McGahn, who left the White House in October 2018, was subpoenaed by the House Judiciary Committee in April, before the impeachment effort over President Trump allegedly pressuring Ukraine to investigate his political rival. Trump ordered McGahn not to comply with the subpoena and Democrats sued in August, claiming to need his testimony on special counsel Robert Mueller’s report, particularly 10 instances of possible obstruction of justice Mueller outlined in his report.
“The articles of impeachment are all about the controversy about Ukraine, and McGahn was long gone by then,” said Judge Thomas Griffith, the most vocal of the judges, pressing Megan Barbero, the associate counsel for the Democratic House of Representatives. “You’re saying there may be yet other articles of impeachment coming?”
Barbero said the House may still pursue other articles of impeachment, which McGahn might have relevant information about.
“The second article of impeachment relates to obstruction of Congress in the Ukraine controversy,” Griffith said.
“But the article also refers to the president’s previous efforts to undermine investigations into foreign interference, and that pattern of misconduct is relevant,” Barbero replied.
During the July 25 phone call that led to an August whistleblower complaint spurring the impeachment proceedings, Trump asked Ukrainian President Volodymyr Zelensky “to do us a favor” by looking into the CrowdStrike conspiracy theory and allegations of Ukrainian election interference in 2016. Trump also urged Zelensky to investigate “the other thing,” referring to allegations of corruption related to Joe and Hunter Biden.
Griffith also asked Barbero whether the Constitution gives the court authority to intervene to force McGahn to comply with a congressional subpoena, a dispute he said historically has been fought between the political branches.
“There has been an unprecedented refusal by the administration to comply with validly issued congressional subpoenas,” Barbero said.
Griffith revisited that argument with Hashim Mooppan, deputy assistant attorney general, who was representing the administration.
“Has there ever been another instance of such a wide-scale defiance of subpoenas in the history of the Republic?” Griffith asked. “The president has directed everyone not to comply — has that ever happened before?”
“Not to my knowledge, but I believe the president would say that never before in history has Congress engaged in the sort of illegitimate action that it is,” Mooppan said.
Mooppan said Congress could instead use political means to force the testimony, such as blocking appropriations or holding up nominations.
But Griffith suggested that impeaching the president over obstructing Congress would be a remedy too.
“The Supreme Court has repeatedly rejected the president’s claims of absolute testimonial immunity,” he said.
Judge Karen LeCraft Henderson asked if the DOJ was saying that no one, including Congress, had the legal standing to enforce a subpoena like this, and Mooppan said yes.
Mooppan criticized the idea that “unelected” judges would rule on a conflict like this.
The panel of judges includes a Democratic appointee and two Republican appointees: Judith Rogers, selected by Bill Clinton; Henderson, by George H.W. Bush; and Griffith, by George W. Bush.
The appeals court ruling could come by the end of the month, though it is not known what the status of the Senate impeachment trial will be then, as House Speaker Nancy Pelosi holds onto the articles of impeachment before they are sent to the Senate, run by Majority Leader Mitch McConnell. If Democrats or the DOJ decide to appeal the ruling by the trio, it could then be looked at by the full 11-member appeals court made up of seven Democratic appointees and four of the GOP’s judges. The DOJ is likely willing to take the case to the Supreme Court.
Rogers and Griffith, joined by Trump-appointee Neomi Rao, also heard oral arguments Friday related to Mueller’s investigation, where Democrats are seeking underlying grand jury materials from the Mueller probe to aid in their Senate trial or to pass additional articles of impeachment, while the DOJ argues Democrats have no right to the secret court testimony. Democrats won the lower district court ruling in that case last year, too.
