DOJ says Dems are out of time to force testimony on alleged obstruction by Trump

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The Justice Department says it has effectively run out the clock on the House’s effort to compel testimony from former White House counsel Don McGahn, a star witness to alleged obstruction of justice by President Donald Trump.

The House subpoenaed McGahn for testimony in May 2019, but he refused to appear and the House has been litigating to force the issue since August 2019, pleading with judges at all levels to expedite the matter because it was crucial to potential articles of impeachment against Trump.

The Justice Department’s filing says that because the current Congress is about to expire and a new Congress, with many new lawmakers, is set to take office on Jan. 3, the House Judiciary Committee’s attempt to obtain McGahn’s testimony is no longer valid.

“There is no reasonable likelihood that this controversy will recur in the future, and it is purely speculative at this time whether a new Congress will renew the same dispute and call on the courts to resolve the same legal issue,” the department argues in a 60-page brief filed by Courtney Dixon, an attorney in its Civil Division.

In addition, the Justice Department appears to flick at the prospect of a post-Trump White House — widely acknowledged based on the Nov. 3 election results, but still largely unacknowledged by the Trump administration — by noting that the next Congress has “no prospect” of reconsidering impeachment.

“The Committee has consistently emphasized that it needed this subpoena ‘particularly’ because it “inform[s] impeachment,” department attorneys wrote. “Those impeachment proceedings have been completed, and there is no prospect that there will be a renewed impeachment inquiry after January 3, 2021.”

The House has consistently argued that it has long been considering whether to bring an additional article of impeachment against Trump for obstruction of justice, though it didn’t include the alleged offense last year, when the House impeached Trump for abuse of power and obstructing congressional investigations — charges that were rejected in the Senate. House lawyers, as well as Judiciary Committee officials, have also made clear that they intend to continue pursuing some Trump-era investigations, in part to prevent future examples of what they’ve described as abuses by the Trump Justice Department.

The department’s argument centers primarily on the fact that the current Congress will adjourn in early January and be succeeded by a new crop of lawmakers who may not wish to continue the investigations of previous Congresses.

“It is entirely speculative whether the Committee’s successor will pursue the same legislative agenda as the current Committee, let alone that it will view a subpoena directed to McGahn as necessary in pursuing that legislative agenda,” the Justice Department argues.

However, congressional lawsuits have routinely spanned many years and multiple election cycles, with routine votes to renew pending litigation taken at the outset of the new Congress. For example, House Republicans litigated efforts to secure documents related to an Obama-era gun-running program, known as Fast and Furious, from 2012 to 2019.

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