Court: Does House still want to hear from ex-White House counsel Don McGahn after Trump impeachment?

Bart Jansen | USA TODAY

WASHINGTON – The same day the House impeached President Donald Trump, a federal appeals court asked whether the House Judiciary Committee still needs to hear from former White House counsel Don McGahn as part of its impeachment inquiry.

The committee subpoenaed McGahn because he figured prominently in former special counsel Robert Mueller's report about Russian interference in the 2016 election. But McGahn defied the subpoena, claiming immunity from being forced to testify because close advisers to the president should be allowed to keep their communications confidential.

The case is important because it could redefine the relationship between the legislative and executive branches of government. Other potential witnesses in the impeachment inquiry, such as acting White House Chief of Staff Mick Mulvaney and former National Security Adviser John Bolton, said they wanted clarification from the courts about whether they could be forced to testify because such cases are rare and disputed.

But the D.C. Circuit Court of Appeals asked Wednesday whether McGahn's case was still worth pursuing. A three-judge panel is set to hear the case Jan. 3. After the House voted Wednesday to impeach Trump for accusations of abuse of power and obstruction of Congress, the appeals court asked whether the McGahn case needs expedited treatment and whether it needs to be decided at all.

The court gave the House until 4 p.m. Monday to explain whether it still wants to compel McGahn's testimony and whether the testimony would further the impeachment inquiry or become simply a matter of legislative oversight.

Neither the Judiciary Committee nor the Justice Department immediately replied to requests for comment.

The House focused its two articles of impeachment on the House Intelligence Committee's findings about Trump's dealings with Ukraine. The House alleged Trump pressured Ukraine to investigate his political rival and then stonewalled the investigation. A Senate trial to decide whether Trump should be removed is expected in January. Trump has said he expects to be vindicated after what he called a partisan "witch hunt."

The Judiciary Committee investigated Trump's actions during the 22-month Mueller inquiry for possible obstruction of justice. The committee sought McGahn's testimony because he told the Mueller team that Trump directed him to have Mueller removed. But Trump has said he cooperated with Mueller by having McGahn and others participate in the inquiry and that Mueller never was removed.

"Don McGahn is a central witness to allegations that President Trump obstructed Special Counsel Mueller's investigation," Judiciary Committee Chairman Jerry Nadler, D-N.Y., said after winning the case in U.S. District Court.

U.S. District Judge Ketanji Brown Jackson rejected the White House's claims of absolute immunity, saying the president "does not have the power" to prevent his aides from responding to congressional subpoenas.

"Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings," Jackson wrote. "This means they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control."

McGahn, however, could invoke executive privilege "where appropriate," Jackson said, citing a previous court ruling that concluded former President George W. Bush's White House counsel must testify before Congress. The judge added it is "widely accepted" that the president can assert executive privilege to protect potentially sensitive topics.

In appealing the case, the Justice Department continued to argue "that Mr. McGahn is absolutely immune from compelled congressional testimony," and that there is a "significant chance" the appeals court would agree.