McGahn Subpoena Case Will Face En Banc Review

WASHINGTON (CN) — The full D.C. Circuit agreed Friday to hear the House Judiciary Committee’s bid to secure testimony from former White House counsel Don McGahn.

In the same unsigned order, the court also agreed to rehear en banc the House of Representative’s lawsuit over President Donald Trump’s declaration of a national emergency at the southern border, citing “the common issue of Article III standing” in each case.

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

The order comes two weeks after a three-judge panel ruled 2-1 that separation of powers principles prevent courts from weighing in on whether the White House could block McGahn from complying with the Judiciary Committee’s subpoena.

A different three-judge panel of the D.C. Circuit heard arguments in the national emergency case in February, but had yet to issue a ruling. Trump declared the national emergency at the border as part of an effort to free up billions of dollars more than Congress set aside for construction of his long-promised wall along the southern border.

U.S. Circuit Judges Gregory Katsas and Neomi Rao, both Trump appointees who served in the White House, did not participate in the decision of whether the full court should hear the cases. Both disputes are likely to reach the Supreme Court.

The House began its efforts to secure McGahn’s testimony well before Trump’s impeachment, while the committee was probing elements of former special counsel Robert Mueller’s report on Russian interference in the 2016 presidential election and possible obstruction by Trump.

The Judiciary Committee sued in August to enforce the subpoena after the White House blocked his testimony as part of unilateral defiance of congressional investigations.

U.S. District Judge Ketanji Brown Jackson, a Barack Obama appointee, beat back the Trump administration’s claim of immunity for McGahn with a scathing 120-page opinion in November.

The House was not so successful in the district court while fighting the emergency declaration. After filing suit last April calling the emergency declaration an end-run around Congress’ constitutional power over appropriations, U.S. District Judge Trevor McFadden dismissed the suit in June.

A Trump appointee, McFadden said the courts should not step into fights between the political branches of government.

A spokeswoman for the House Judiciary Committee did not immediately return a request for comment Friday on the court’s decision.

The Justice Department also did not immediately respond to a request for comment.

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