In a late-night court filing, the Justice Department argued to the federal appeals court in Washington that the courts should stay out of the fight between the House and the administration over former White House counsel Don McGahn’s testimony – especially now that the Senate will try the President for obstructing Congress from questioning administration witnesses.
Why this matters:The filing comes in one of the most significant significant court cases that could be resolved during the Trump impeachment proceedings.
“Indeed, if this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial. That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial, ”the Justice Department wrote just after midnight Sunday night. “The now very real possibility of this Court appearing to weigh in on an article of impeachment at a time when political tensions are at their highest levels — before, during, or after a Senate trial regarding the removal of a President — puts in stark relief why this sort of interbranch dispute is not one that has ‘traditionally thought to be capable of resolution through the judicial process.’ ”
The DOJ, arguing for McGahn, says that the impeachment votes against President Trump last week don’t make the McGahn lawsuit immediately moot, because he was subpoenaed months before the House investigated Trump for his pressure on Ukraine. But the impeachment vote now means a quick resolution to McGahn’s case is no longer necessary, the DOJ attorneys write.
What happens next:A three-judge panel on the DC Circuit Court of Appeals is set to hear oral arguments in the case on Jan. 3.
The House Judiciary Committee says it has needed McGahn to testify since April as part of a possible impeachment inquiry of the President related to obstruction of justice.
Trump’s attempts to obstruct the Russia investigation – about which McGahn is a key witness – aren’t part of the articles of impeachment against Trump. Yet the House voted to impeach him for obstructing Congress, including not allowing former White House officials to testify to Congress. Trump has used the same reasoning, absolute immunity for the top officials around the President, to block McGahn and witnesses in the Ukraine dealings from testifying.
A ruling from the appeals court endorsing or striking down the White House’s immunity assertions could impact a Senate trial, no matter its focus.
Some context:Historically, federal courts try to stay out of clashes between the executive branch and Congress, or Congress and the Justice Department have negotiated before an appeals court could settle other disputes over administration witnesses. Yet a trial-level judge in Washington ruled recently that McGahn would have to testify, because the White House could not claim a blanket immunity to override a congressional subpoena of a former official.