(CN) — In a major reversal, the en banc D.C. Circuit said Thursday it will rehear a case brought by House Democrats to force former White House counsel Don McGahn to appear before Congress.
A hearing will be held on Feb. 23 to decide whether the House of Representatives has authority under the Constitution or federal law to ask courts to enforce a subpoena against a member of the executive branch. The schedule set out by the court ensures that a decision in the case will not come until after the election.
McGahn’s testimony was requested in April 2019 as part of the House’s investigation into whether President Donald Trump obstructed special counsel Robert Mueller’s investigation into Russian interference in the 2016 election.
Although McGahn has refused to testify before the Democrat-controlled House, he testified to Mueller’s team about efforts by the president to end the Mueller investigation.
The court’s decision Thursday continues a game of legal ping-pong that has already cycled through the D.C. Circuit once before. The order set aside a divided three-judge panel’s Aug. 31 decision which ruled that the House did not have legal grounds to bring the lawsuit.
The D.C. Circuit had already dismissed the lawsuit once before. Thursday’s order marks the second time the en banc court has thrown out a panel ruling in the case.
A district court judge upheld the subpoena in November 2019 but the ruling was struck down by a divided D.C. Circuit panel in February, which ruled that the Constitution bars federal judges from resolving subpoena disputes between the executive and legislative branches.
In a 7-2 decision on Aug. 7, the en banc court ruled that the subpoena was valid and determined that the House had legal standing to compel McGahn to appear. But another three-judge panel ruled later in August that there are no laws on the books allowing Congress to seek enforcement of its subpoenas.
The D.C. Circuit on Thursday also directed the parties to address in their briefs whether the case will become moot when the subpoena expires at the end of the current congressional term in January.