Appeals court revives House Democrat subpoena effort against Don McGahn

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A federal appeals court in the nation’s capital revived an effort from House Democrats seeking to enforce a subpoena for the testimony of former White House counsel Don McGahn, meaning the legal saga continues but will now extend beyond the November election.

Nine judges for the U.S. Court of Appeals for the District of Columbia Circuit granted the Democrat-led House Judiciary Committee’s petition for a rehearing by the full appeals court on Thursday and vacated the 2-1 ruling by a three-judge appeals court panel from late August, which had shot down the Democratic effort.

The new order, handed down by Obama-appointed Chief Judge Padmanabhan Srikanth “Sri” Srinivasan and others, set up a briefing schedule for November and December and said the case seeking McGahn’s Trump-Russia-related testimony was now set for a rehearing on Feb. 23, 2021 — after a new Congress and possibly a new president have taken office.

The full appeals court said this week that “in addition to addressing the full set of issues presented to the panel and raised by the Committee’s petition for rehearing en banc, the parties are also directed to address in their briefs whether the case would become moot when the Committee’s subpoena expires upon the conclusion of the 116th Congress.”

On Aug. 31, Judge Thomas Griffith, appointed by former President George W. Bush in 2005, joined by Judge Karen Henderson, an appointee of former President George H.W. Bush, issued an opinion shooting down the Democratic effort after the full D.C. appeals court had ruled that month that the Democratic committee had standing to sue the federal courts to enforce its subpoena against McGahn but sent it back to a three-judge appeals panel to look at other issues.

“We have no occasion to address the immunity argument because we conclude that the Committee lacks a cause of action. Accordingly, the case must be dismissed,” Griffith said in the now-overturned ruling, adding, “Congress may someday determine that the federal courts should stand ready to enforce legislative subpoenas against executive-branch officials, but authorizing that remedy ourselves would be incompatible with the democratic and self-deprecating judgment that we lack the power to create remedies previously unknown to equity jurisprudence.”

The now-reversed August ruling had been a win for the Trump administration, because the committee, led by Democratic Chairman Jerry Nadler of New York, has been trying to obtain testimony from McGahn since early 2019 on matters relating to special counsel Robert Mueller’s investigation, but the White House blocked him from testifying under the cover of “absolute immunity” from congressional subpoenas. Depending on how the February hearing goes, McGahn may be forced to testify after all.

But Judge Judith Rogers, appointed by former President Bill Clinton and who authored the early August full-court opinion, dissented from the two other panel judges in late August.

“McGahn’s contention that he is entitled to absolute immunity from the Committee’s subpoena lacks merit,” Rogers said in her dissent. “McGahn contends that, notwithstanding the Committee’s Article III standing, there is no statutory or constitutional authorization for the Committee to bring the present subpoena enforcement lawsuit. But there is both an implied cause of action under Article I of the Constitution and a cause of action pursuant to the Declaratory Judgment Act authorizing the Committee to bring this lawsuit.”

The McGahn subpoena came well before the Ukraine-related impeachment investigation into President Trump, but Democrats said they saw testimony from the former White House counsel as important to the process despite the articles of impeachment centering around events that took place after McGahn left the White House.

McGahn, who served as counsel from Trump’s inauguration through his resignation in October 2018, is mentioned 71 times in Mueller’s 448-page report. Mueller concluded that the Russians interfered “in sweeping and systematic fashion” during the 2016 presidential election, but he “did not establish” any criminal conspiracy between the Kremlin and the Trump campaign.

Democrats sued McGahn in August 2019, claiming to need his testimony on Mueller’s inquiry, particularly the 10 instances of possible obstruction of justice that Mueller outlined in his report. Attorney General William Barr and then-Deputy Attorney General Rod Rosenstein concluded that justice had not been obstructed.

When Mueller’s office asked McGahn about allegations that Trump had pressured him to fire the special counsel, “McGahn responded that he would not refute the press accounts because they were accurate in reporting on the President’s effort to have the Special Counsel removed,” according to Mueller’s report.

In May 2019, Assistant Attorney General Steven Engel concluded that McGahn could not be compelled to testify by Congress.

“We provide the same answer the Department of Justice has repeatedly provided for nearly five decades: Congress may not constitutionally compel the president’s senior advisers to testify about their official duties,” Engel wrote. “Those principles apply to the former White House Counsel. Accordingly, Mr. McGahn is not legally required to appear and testify about matters related to his official duties as counsel to the president.”

Last November, U.S. District Judge Ketanji Brown Jackson ruled in favor of the Democrats, although that was quickly appealed to the circuit court, where the legal battle continues.

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