House asks court to enforce McGahn subpoena: Impeachment update

Senate Majority Leader Mitch McConnell speaks on the chamber’s floor Friday about the GOP standoff with Democrats over how to conduct the impeachment trial of President Donald Trump. Minority Leader Chuck Schumer plans to make remarks.

Congress returns to Washington next week, and the Democratic-controlled House hasn’t sent the Senate the two impeachment articles adopted in December.

Here are the latest developments:

House Asks Court to Enforce McGahn Subpoena (11:41 a.m.)

A lawyer for the House Judiciary Committee urged a federal appeals court to order former White House Counsel Donald McGahn to testify before lawmakers, saying the Trump administration has engaged in an “unprecedented refusal” to comply with congressional subpoenas.

The administration’s actions left the House committee with no choice but to ask a court to compel enforcement, attorney Megan Barbero said, adding, “that is why we are here.”

Earlier in Friday’s court argument, Justice Department lawyer Hashim Mooppan said the court had no jurisdiction to rule in the dispute between the president and Congress. Mooppan said McGahn and other White House officials have absolute immunity from compelled testimony.

Judge Thomas Beall Griffith suggested that latter claim may be “extravagant.”

Still, Griffith asked Barbero, the House lawyer, whether she’s pressing her argument to protect the House’s oversight power or because it’s considering further articles of impeachment against Trump.

One of the two articles approved by the House concern the withholding of U.S. aid to Ukraine in mid-2019. McGahn, who left the White House in October 2018, “was long gone by then,” Griffith said. The other article of impeachment charged Trump with obstructing Congress.

Barbero said that while the effort to get McGahn’s testimony began as an exercise of the House’s oversight power, “we remain here because of the impeachment.” If McGahn’s testimony produces new evidence of obstruction by the president, “the committee will proceed accordingly,” Barbero said.

Asked whether that means additional articles of impeachment are possible, Barbero said McGahn’s testimony about what he witnessed before stepping down could be relevant to the question of whether Trump should be removed from office.

DOJ Asks Court to Ignore McGahn Subpoena (10:32 a.m.)

A Trump administration lawyer urged a federal appeals court to decide it lacks the power to order former White House Counsel Don McGahn to testify to the House Judiciary Committee.

If the court starts ruling on such disputes between the president and Congress, “it will never end,” Justice Department lawyer Hashim Mooppan told the three-judge panel in Washington. “There will be case after case after case, and this court will be in the business of resolving disputes over information.”

The judiciary shouldn’t be picking winners and losers in a “political food fight” between the president and the House, Mooppan said.

Judge Thomas Beall Griffith said the Supreme Court has repeatedly rejected presidential claims of absolute immunity against providing testimony, citing the 1974 Supreme Court ruling that required President Richard Nixon to turn over White House tape recordings. That case involved a judicial subpoena, not a congressional subpoena, Mooppan said.

“Your position is no one has standing” to bring such an action, Judge Karen LeCraft Henderson told Moopan.

Mooppan confirmed that position, saying that allowing such suits would shift power from the executive branch to Congress.

The argument is continuing, and a separate three-judge panel also will hear arguments on House Democrats’ bid for some of Special Counsel Robert Mueller’s secret grand jury materials. – Andrew Harris

Court to Hear Appeal on McGahn Testimony (6 a.m.)

U.S. appeals courts will hear back-to-back arguments Friday on whether to enforce House Judiciary Committee demands for testimony from former White House Counsel Donald McGahn and for some of Special Counsel Robert Mueller’s secret grand jury materials.

The Trump administration is seeking to overturn lower court rulings backing the committee. The Justice Department says McGahn is constitutionally immune to the Judiciary Committee subpoena because he is a former close adviser to the president.

The Judiciary panel says it’s continuing its investigation even after the House impeached Trump and as Speaker Nancy Pelosi spars with McConnell over how to proceed with a trial. McGahn’s testimony and the Mueller materials are still of vital importance, the House committee contends.

“McGahn was a witness to several of the president’s past efforts to undermine investigations into foreign interference in elections,” said House General Counsel Douglas Letter’s brief for the Judiciary Committee. If McGahn produces new evidence, the committee may consider “whether to recommend new articles of impeachment,” Letter wrote.

House Democrats have sought to question McGahn since shortly after the release last April of Mueller’s report on Russian interference in the 2016 election. McGahn resigned as White House counsel in October 2018 and didn’t appear for a hearing scheduled by the Judiciary Committee in May. A judge ruled in favor of the committee in November.

The committee also sued for the right to review Mueller’s secret grand jury evidence and transcripts. On Oct. 25, the chief judge of the U.S. District Court in Washington rejected Justice Department arguments that the House impeachment inquiry wasn’t the type of judicial proceeding that would warrant the release of grand jury materials.

“Impeachment based on anything less than all relevant evidence would compromise the public’s faith in the process,” Judge Beryl Howell wrote then. – Andrew Harris