WASHINGTON – The federal appeals court in Washington, D.C., seemed inclined Tuesday to revive a demand from the House of Representatives that former White House counsel Don McGahn show up for testimony linked to the Mueller investigation.
The Democratic-dominated court was broadly skeptical of Trump administration arguments that judges have no role to play in the dispute over a subpoena for McGahn's testimony that was issued a year ago by a House committee.
Congress cannot sue the executive branch, but lawmakers can block a president's legislative agenda, defeat his nominees and take other actions when the White House refuses to cooperate, Justice Department lawyer Hashim Mooppan told judges on the U.S. Court of Appeals for the District of Columbia Circuit. The court heard arguments by telephone and streamed the audio live on its website.
Judge Cornelia Pillard called Mooppan's alternatives “huge, blunt, disproportionate political nuclear options," especially when Congress is merely seeking information, as it is in the McGahn case.
The full court threw out an initial ruling by a three-judge panel that held Congress could not ask courts to enforce its subpoena. Tuesday's session also included a separate dispute over the House's effort to stop the Trump administration from spending billions of dollars that Congress didn't authorize for a wall on the U.S.-Mexico border.
Both cases turn on whether the House can seek the help of federal judges, and the outcome also is being watched for what it says about Congress' ability to monitor trillions of dollars the administration is allocating to deal with the spread of the coronavirus and the resulting economic fallout. Douglas Letter, the House's top lawyer, said a ruling for the administration would render Congress' oversight responsibilities toothless.
“These cases, both of them, are sort of big deals," Judge Patricia Millett said during arguments that lasted three hours.
Time is growing short for Democrats, who want McGahn’s testimony before the November elections. But it's unclear how salient the issue of Russia's interference in the 2016 election will be now that the virus outbreak has dramatically altered life in the U.S., with more than 55,000 people dead and 26 million out of work.
The House Judiciary Committee first subpoenaed McGahn in April 2019 as it examined potential obstruction of justice by the Republican president during special counsel Robert Mueller’s Russia investigation. Trump directed McGahn not to appear, and the Democratic-led panel filed a federal lawsuit to force McGahn to testify.
A trial judge ruled in November that the president’s close advisers do not have, as the administration claimed, absolute immunity from testifying to Congress.
But the appeals court judges said in a 2-1 ruling that the case should be dismissed because the Constitution forbids federal courts from refereeing this kind of dispute between the other two branches of government.
Two Republican-appointed judges, Thomas Griffith and Karen Henderson, were in the majority, and Judge Judith Rogers, put on the court by Democratic President Bill Clinton, dissented.
Trump's two appointees to the court, Judges Gregory Katsas and Neomi Rao, are not taking part in the case.
House lawmakers had sought McGahn’s testimony because he was a vital witness for Mueller, whose report detailed Trump’s outrage over the investigation into Russian interference in the 2016 election and the president’s efforts to curtail it.