Review of decision in McGahn case set

WASHINGTON — A federal appeals court in Washington revived the House of Representatives’ attempt to enforce a subpoena to former White House counsel Donald McGahn, but cautioned Thursday that the case could go unresolved once this Congress’ term ends in January.

The full U.S. Court of Appeals for the District of Columbia Circuit said in an order that it will revisit a 2-1 panel decision from six weeks ago to dismiss the House lawsuit, which came after the White House claimed key presidential aides are “absolutely immune” from compelled testimony to Congress. The panel found that Congress has not passed a law expressly authorizing it to sue to enforce its subpoenas.

On Thursday, the full circuit vacated that decision and set arguments for Feb. 23. However, the court told both sides to address “whether the case would become moot when the Committee’s subpoena expires upon the conclusion of the 116th Congress” on Jan. 3.

The circuit did not release a vote but said a majority of nine eligible judges agreed with a House petition for the rehearing en banc. Judges Gregory Katsas and Neomi Rao, who previously served in Trump’s White House, did not participate.

At stake is the House’s oversight authority to compel executive-branch testimony. The House Judiciary Committee sought documents and testimony from McGahn related to special counsel Robert Mueller III’s investigation into Russian interference in the 2016 election, including its report on whether the White House obstructed justice.

The House sued to enforce an April 22, 2019, request to McGahn to help determine whether Trump “committed impeachable offenses.” Trump directed McGahn not to cooperate.

The full court’s action echoed a similar sequence at an earlier stage in the litigation this year, when it reversed the same, split threejudge panel’s reasoning on a different legal point.

In a 7-to-2 decision written by Judge Judith Rogers, the dissenting vote in both three- judge panels, wrote for the majority that the administration harmed the House’s long- standing authority to compel testimony from government officials, and the court was simply preserving power the House was already understood to possess.