Feds Ask Court to Toss McGahn Subpoena Case After Impeachment

WASHINGTON (CN) — The Justice Department cried moot Thursday in arguing the D.C. Circuit should drop the case to enforce former White House counsel Don McGahn’s congressional subpoena after the House approved articles of impeachment against President Donald Trump.

Then-White House counsel Don McGahn at a Cabinet meeting in the White House in October 2018. (AP Photo/Evan Vucci)

Democrats on the House Judiciary Committee filed the lawsuit in D.C. federal court when McGahn failed to appear to testify on Trump obstructing the FBI investigation into Russian interference in the 2016 presidential election.

After U.S. District Judge Ketanji Brown Jackson ruled last month that Trump does not hold power over past and present aides’ testimony — writing in a scathing 120-page opinion that “presidents are not kings” — the administration appealed.

In a brief filed Thursday, the Justice Department advised a three-judge panel of the D.C. Circuit, set to hear arguments in the case on Jan. 3, that it should “refrain from embroiling itself” in the interbranch legal battle.

“The Committee’s primary asserted need for subpoenaing McGahn – his potential testimony related to an obstruction-of-justice impeachment charge – appears to be moot,” the government argued.

Urging the court to dismiss the case, Justice Department attorneys slammed it as a “radical distortion” of the balance of power between the three branches of government.

“Rather than allow the political branches to resolve disputes over their institutional prerogatives through the political process as they have done for over two centuries, the Committee envisions a world in which the Legislative Branch may simply file complaint after complaint against the Executive Branch, with the Judicial Branch stuck in the middle of legally and politically fraught battles over congressional authority and presidential privileges and other prerogatives,” the brief states.

As argued in the lower court, the government also slammed Democrats for trying to enforce a subpoena issued by the majority of the Judiciary Committee and not the full House.

Senate Majority Leader Mitch McConnell, R-Ky., said from the Senate floor Thursday morning that Trump was exerting executive privilege to protect the office of the president when he blocked aides from testifying in the impeachment investigation on matters related to Ukraine.

But Democrats decry the president’s actions as an unprecedented obstruction of their congressional mandate to provide oversight of the executive branch. Even former President Richard Nixon allowed aides to testify, House Judiciary Chair Jerry Nadler, D-N.Y., has repeatedly pointed out.

But the Justice Department hit back in its brief Thursday, asserting congressional subpoenas carry limited authority.

“The power of courts to issue compulsory process is expressly recognized in the Constitution and necessary in the criminal context to vindicate the constitutional rights of the defendant, whereas congressional subpoena power is merely an auxiliary to effectuating Congress’s own legislative powers,” the Justice Department argued.

During the Nixon impeachment, the U.S. Supreme Court held that the process for White House archivists to screen presidential documents was “not unduly disruptive” of executive functions, according to the brief.

“That holding is far afield from an effort by a House committee to compel the testimony of a close presidential advisor,” the Justice Department argued.

McConnell also said Thursday that Democrats should have looked to the courts to enforce subpoenas for testimony from top White House advisers that Senate Minority Leader Chuck Schumer, D-N.Y. is now requesting Republicans call as witnesses in a Senate impeachment trial.

“My goodness, in Nixon, the courts were allowed to do their work. In Clinton, the courts were allowed to do their work,” McConnell said. “Only these House Democrats decided due process is too much work. They would rather impeach with no proof.”

Questioned on whether Democrats planned to battle out the subpoenas with lawsuits that would surely reach the Supreme Court, Pelosi has more than once pointed out that McGahn’s case was filed in July. She argued in the weeks leading up to the impeachment vote that Trump should not be allowed to bog down the investigation with long-winding litigation.

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