Judges struggle over Trump bid to block McGahn testimony
WASHINGTON >> U.S. appeals court judges on Friday appeared skeptical about broad legal arguments by President Donald Trump’s administration seeking to block a former White House lawyer from testifying to Congress as part of the impeachment effort against Trump, but also seemed wary about stepping into the heated political fight.
Judge Thomas Griffith asked tough questions of the Justice Department lawyer who argued on behalf of the administration and the lawyer for the Democratic-led House of Representatives Judiciary Committee that subpoenaed former White House Counsel Don McGahn, and could be the pivotal vote in deciding the case. The case was being heard by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. Griffith questioned whether the court should decide the case at all, in part because McGahn’s testimony is not key to the two articles of impeachment against Trump approved by the House on Dec. 18.
Griffith, a Republican appointee, and Judge Judith Rogers, a Democratic appointee, questioned the administration’s arguments that the House panel has no legal standing to enforce its subpoena and that there is broad presidential immunity that applies to efforts to seek testimony from close advisers. The other judge, Republican appointee Karen Henderson, said little. The arguments came in the administration’s appeal of a Nov. 25 ruling by U.S. District Judge Ketanji Brown Jackson that McGahn must comply with the committee’s April subpoena.
The committee filed suit seeking to enforce its subpoena for McGahn to testify about Trump’s efforts to impede former special counsel Robert Mueller’s investigation that documented Russian interference in the 2016 election and numerous contacts between Trump’s campaign and Moscow.
Griffith asked whether there has ever been such “broad scale defiance” of congressional requests in U.S. history as has been exhibited by the Trump administration.
Griffith also noted that the Supreme Court has previously said that legislatures can have legal standing in such cases. The committee’s lawsuit was filed in August, a month before the House launched its impeachment inquiry against the Republican president centering on his request that Ukraine investigate Democratic political rival Joe Biden and his son.
Griffith noted McGahn was “long gone” from the White House by the time the Ukraine controversy unfolded. Griffith also appeared skeptical over some claims made by House lawyer Megan Barbero.
“I wonder if we should be involved with this dispute at all,” Griffith said.
Rogers said that if the House cannot enforce subpoenas, its “critical power in terms of checking abuse of presidential power” would be stymied.