Judges on the U.S. Court of Appeals for the D.C. Circuit were considering two separation-of-powers lawsuits over a House subpoena for President Trump’s former White House counsel Donald McGahn and secret evidence from former special counsel Robert S. Mueller III’s Russia investigation.
Two of the three judges on the first panel — Thomas B. Griffith and Judith W. Rogers — seemed skeptical of the Trump administration’s broad claim that top presidential advisers like McGahn are “absolutely immune from compelled congressional testimony.”
“Has there ever been an instance of such broad-scale defiance of a congressional request for information in the history of the Republic? Has this ever happened before?” Griffith asked Justice Department Attorney Hashim Mooppan, before answering his own question, “No, it hasn’t.”
Mooppan disagreed with the judge’s characterization and warned the court against stepping into a “political food fight.” Choosing sides in a political dispute, he said, would undermine “public confidence in the court.”
The back-to-back court hearings came as lawmakers are scheduled to return to Washington early next week. Pelosi (D-
Calif.) has held off sending articles of impeachment — for abuse of power and obstruction of Congress — to the Senate over concerns about witnesses and documents for the trial.
Both lawsuits were filed before the formal start of impeachment proceedings centered on the president’s alleged effort to pressure Ukraine to conduct investigations that would benefit him politically.
Justice Department lawyers urged the court on Friday to stay on the sidelines because Congress has other tools — such as withholding appropriations, stalling nominations and impeachment — to deal with intransigence from the executive branch.
Rogers, in response, rebutted the idea that the Republican-
controlled Senate would go along, saying, “We have two branches of government at loggerheads.”
“Is there no role for the courts?” asked Rogers, a nominee of President Bill Clinton. “Either they have to duke it out or nothing happens?”
The outcome of the cases may turn on Griffith, a former Senate legal counsel nominated by President George W. Bush, who participated in both panels. He pressed House lawyers about the continued need for McGahn’s testimony and the grand jury materials now that the House has voted to impeach.
“Are you here to say there may be a third article of impeachment?” Griffith asked Douglas N. Letter, the House general counsel.
Letter said lawmakers need the material to make decisions about presenting evidence in a Senate trial, and the information could be used to determine whether to recommend additional articles of impeachment.
“Yes, that’s on the table. There is no doubt,” Letter said, adding that Pelosi had signed off on the legal position first outlined in a House court filing last month.
That legal argument, however, is at odds with what House Democratic leaders have been saying privately for weeks. Pelosi’s leadership team had been eager to finish impeachment by the holiday season so they could return to discussing pocketbook issues Pelosi believes will resonate with voters in 2020.
The notion of House lawmakers writing additional charges against Trump, including those stemming from Mueller’s findings, may be popular among liberal members. But they are not under serious consideration among leaders loath to repeat a second impeachment saga before the 2020 election.
In the first case, the appeals court was reviewing a November decision from U.S. District Judge Ketanji Brown Jackson, who upheld the Judiciary Committee’s August subpoena for McGahn. The judge rejected the White House assertion that a president can overrule current or former aides’ “own will to testify,” calling it “a proposition that cannot be squared with core constitutional values.”
The appeal was heard by Judges Karen LeCraft Henderson, Griffith and Rogers.
In the second case, which Griffith and Rogers also heard, the Justice Department is asking the D.C. Circuit to reverse a court order to disclose to the House certain grand jury evidence from Mueller’s investigation. Chief U.S. District Judge Beryl A. Howell in October ruled the House was legally engaged in a judicial process that exempts Congress from secrecy rules that shield grand jury material.
Howell called “extreme” the Justice Department’s position that despite legal rulings during the impeachment inquiry into Richard M. Nixon, courts in 1974 should not have given Congress materials from the Watergate grand jury.
Griffith referred several times to a Watergate-era ruling that he called the “gold standard,” telling Justice Department attorney Mark Freeman, “you’ve got a lot of history going up against you.”
Even if the House were to prevail in one or both of the lawsuits, it is unclear if lawmakers would get access to the information they are seeking soon. Griffith noted McGahn might still refuse to testify, citing executive privilege, even if ordered by the court to appear before the House.
Later, in response to a question from Judge Neomi Rao in the second case, Freeman said he could not say whether the Justice Department would turn over the secret grand jury material if authorized or ordered to do so by the court.
Letter told the court that Congress should not have to resort to extremes to get information to carry out its constitutional duties. Without the court’s intervention, Letter suggested, the House could send its sergeant at arms to pick up the material from the Justice Department, or Congress could shut down the government to get the information. He even raised the prospect of a hypothetical gun battle with the attorney general’s security detail.
“Every other president has cooperated with impeachment investigations. This is the first president who has not,” Letter said, calling the Justice Department’s position “astonishing.”
In response, Rao, a recent nominee of President Trump, said, “This is the first time the House is seeking the court’s assistance to get this information.”
Rachael Bade and Paul Kane contributed to this report.