House Democrats seek secret evidence, testimony from former counsel
WASHINGTON — A federal appeals court in Washington struggled Friday with whether it has a role to play in a fight between the Trump administration and House Speaker Nancy Pelosi over testimony and grand jury materials Democrats say they need in the leadup to a Senate impeachment trial and “ongoing inquiry into the president’s conduct.”
Judges on the U.S. Court of Appeals for the District of Columbia Circuit were considering two separation-of-powers lawsuits over a House subpoena for President Donald Trump’s former White House counsel Donald McGahn and secret evidence from former special counsel Robert Mueller’s Russia investigation.
Two of the three judges on the first panel — Thomas Griffith and Judith Rogers — seemed skeptical of the Trump administration’s broad claim that top presidential advisers such as Mr. McGahn are “absolutely immune from compelled congressional testimony.”
“Has there ever been an instance of such broadscale defiance of a congressional request for information in the history of the Republic? Has this ever happened before?” Judge Griffith asked Justice Department Attorney Hashim Mooppan, before answering his own question, “No, it hasn’t.”
Mr. Mooppan disagreed with the judge’s characterization and warned the court against stepping into a “political food fight.” Choosing sides in a political dispute, he said, would undermine “public confidence in the court.”
The back-to-back court hearings came as lawmakers are scheduled to return to Washington early next week. Ms. Pelosi, D-Calif., has held off sending articles of impeachment — for abuse of power and obstruction of Congress — to the Senate over concerns about witnesses and documents for the trial.
Both lawsuits were filed before the formal start of impeachment proceedings centered on the president’s alleged effort to pressure Ukraine to conduct investigations that would benefit Mr. Trump politically.
Justice Department lawyers urged the court on Friday to stay on the sidelines because Congress has other tools — such as withholding appropriations, stalling nominations and impeachment — to deal with intransigence from the executive branch.
Judge Rogers, in response, refuted the idea that the Republican-controlled Senate would go along, saying “we have two branches of government at loggerheads.”
“Is there no role for the courts?” asked Judge Rogers, a nominee of Bill Clinton. “Either they have to duke it out or nothing happens?”
The outcome of the cases may turn on Judge Griffith, a former Senate legal counsel nominated by George W. Bush, who participated in both panels. He pressed House lawyers about the relevance and continued need for Mr. McGahn’s testimony and the grand jury materials now that the House has voted to impeach the president.
“Are you here to say there may be a third article of impeachment?” Judge Griffith asked attorney Douglas Letter, the House general counsel.
Mr. Letter said House lawmakers need the material to make decisions about how to present evidence in a Senate trial, and that the information could be used to determine whether to recommend additional articles of impeachment.
“Yes, that’s on the table. There is no doubt,” Mr. Letter said.