Don McGahn Then-White House Counsel Donald McGahn, attending Supreme Court nomination announcement of Brett Kavanaugh  (Photo: Diego M. Radzinschi/ALM)

The U.S. Justice Department and lawyers for House Democrats on Monday presented competing views on how quickly a federal appeals could should resolve a dispute over a subpoena seeking the testimony of Donald McGahn, a former Trump White House counsel who has obeyed the president's command not to speak with congressional investigators.

House Democrats consider McGahn, now a Jones Day partner in Washington, a central witness to allegations that Trump has obstructed Congress and abused his power, the basis of two articles of impeachment the House embraced last week. The Justice Department, meanwhile, suggested that the U.S. Court of Appeals for the D.C. Circuit refrain from any judgment at all—or at least not while the removal of Trump will be considered.

"Indeed, if this court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial," DOJ lawyer Martin Totaro wrote in the filing Monday. "That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial."

Lawyers for the House asserted in their new filing: "The committee continues to suffer harm with each additional day that it is denied access to McGahn's testimony. The committee has already waited eight months. The committee should not be required to wait any longer." The House lawyers, led by general counsel Douglas Letter, said "the committee's wait for McGahn's testimony should end now."

The dueling filings came in response to inquiries from the panel judges who are set to hear arguments Jan. 3 in back-to-back hearings. One case involves the subpoena seeking McGahn's testimony. The other involves whether House Democrats are entitled to see grand jury materials prepared by Robert Mueller III, the special counsel who investigated Russia's interference in the 2016 election. The Justice Department was on the losing side in both disputes.

D.C. Circuit Judges Judith Rogers, Thomas Griffith and Karen LeCraft Henderson will hear the McGahn subpoena case, and Rogers, Griffith and Judge Neomi Rao, who joined the court earlier this year, will hear the dispute over Mueller grand jury records. Rao, formerly a top Trump administration regulatory official, could be recused in the McGahn matter based on her ties to the White House.

In the McGahn case, U.S. District Judge Ketanji Brown Jackson of the District of Columbia in November upheld the House demand that McGahn testify as part of the impeachment process.

Ketanji Brown Jackson U.S. District Judge Ketanji Brown Jackson in D.C. Credit: Diego M. Radzinschi/ ALM

"Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings. This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control," Jackson wrote. "Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the people of the United States, and that they take an oath to protect and defend the Constitution of the United States."

The House, voting largely on party lines, impeached Trump on charges of abuse of power and obstruction of Congress. Trump pressured Ukraine to meddle in U.S. electoral politics, and his administration has refused to cooperate with House Democrats as part of the impeachment process. Trump has described his interaction with the president of Ukraine as "perfect," and he has derided the impeachment process as a "hoax."

Whether McGahn or any other current or former Trump administration official will testify at impeachment trial remains an open question. Senate Republican leaders have rebuffed demands from Democrats that witnesses be allowed to testify.

No impeachment trial date has been set. House Democrats have not yet sent the two articles of impeachment to the Senate, a requirement before the Senate can consider whether the claims against Trump warrant his removal from office.

"McGahn's testimony would inform the House's decision-making regarding the presentation of the articles and evidence to the Senate," House lawyers said in Monday's filing. "As the committee's impeachment report explains, relevant information from McGahn's testimony 'would be utilized, among other purposes, in a Senate trial on these articles of impeachment.'"

The Justice Department's legal team on Monday told the court there's no reason to expedite any consideration beyond the already-scheduled Jan. 3 arguments. "This court should decline the committee's request that it enter the fray and instead should dismiss this fraught suit between the political branches for lack of jurisdiction," DOJ lawyers said.

In the Mueller grand jury materials case, U.S. District Chief Judge Beryl Howell in October said the Justice Department could not withhold grand jury materials from House investigators. Howell backed the House argument that the information was necessary as part of the impeachment inquiry itself, which at that time was still ongoing.

Howell concluded, contrary to assertions from the Justice Department, that the impeachment inquiry was a "judicial process"—one of only a few measures that can break the secrecy rules that broadly shield grand jury materials from disclosure.

Hundreds of law scholars have asserted that the offenses against Trump are "clearly impeachable," going to the heart of the Founders' concerns about foreign influence in the United States.

 

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