WASHINGTON -- Former White House counsel Donald McGahn can ignore a congressional subpoena, a federal appeals court in Washington ruled Friday in a decision siding with President Donald Trump, who had blocked top advisers from testifying as part of the impeachment proceedings.
The 2-1 ruling by a three-judge panel means Trump's former lawyer cannot be compelled to appear on Capitol Hill, and comes after Democrats lost their bid to call additional witnesses during Trump's Senate trial.
The Justice Department had argued that the Constitution categorically bars the courts from stepping into this kind of dispute between the politically elected legislative and executive branches, and in a 37-page opinion, U.S. Circuit Judge Thomas Griffith wrote, "We agree and dismiss this case."
"The Committee's suit asks us to settle a dispute that we have no authority to resolve. The Constitution does not vest federal courts with some 'amorphous general supervision of the operations of government,'" Griffith wrote, drawing a concurring opinion from Judge Karen LeCraft Henderson and a dissent from Judge Judith W. Rogers.
The judges were reviewing a November decision from U.S. District Judge Ketanji Brown Jackson, who upheld the House Judiciary Committee's subpoena in August for McGahn. The judge rejected the White House's broad claim that top advisers like McGahn are "absolutely immune from compelled congressional testimony" and the assertion that the president can overrule current or former aides "own will to testify."
If McGahn wanted to refuse to testify -- by invoking executive privilege, for instance -- the judge said he had to do so in person, and question by question.
Trump had halted McGahn's testimony, saying the key presidential adviser could not be forced to answer questions or turn over documents. At oral argument on Jan. 3, Justice Department attorney Hashim Mooppann urged the court to stay out of a political dispute between Congress and the White House. He said choosing sides would undermine "public confidence in the court."
The lawsuit was filed before the formal start of impeachment proceedings and the House vote in December to impeach Trump for his alleged effort to pressure Ukraine to conduct investigations that would benefit his reelection campaign. The Senate voted to acquit Trump on Feb. 5.
The committee had asked the court to enforce its subpoena for McGahn, who lawmakers have said is the "most important" witness on the question of whether Trump obstructed justice in former special counsel Robert Mueller's investigation of Russian interference in the 2016 election.
Before Trump was acquitted, House lawyers told the court in early January that McGahn's testimony was still critical to "ongoing inquiry into the president's conduct" and suggested a third article of impeachment was "on the table."
A Section on 02/29/2020