Judges wrestle over Trump bid to block testimony sought by House

US

WASHINGTON (Reuters) – U.S. appeals court judges on Friday grappled with broad legal arguments by President Donald Trump’s administration seeking to block former White House Counsel Don McGahn from testifying to a congressional committee as part of the impeachment effort against Trump.

FILE PHOTO: White House Counsel Don McGahn listens to Supreme Court nominee Brett Kavanaugh as he testifies before the US Senate Judiciary Committee on Capitol Hill in Washington, DC, U.S., September 27, 2018. Saul Loeb/Pool via REUTERS/File Photo

Judge Thomas Griffith, a Republican appointee, asked tough questions of the Justice Department lawyer who presented the administration’s arguments and the lawyer for the Democratic-led House of Representatives Judiciary Committee, 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. At one point, 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 already approved by the House.

In the initial exchanges, Griffith 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. Arguments were continuing.

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 noted that the Supreme Court has previously said that legislatures can have legal standing in such cases.

But Griffith also asked appeared skeptical over some claims made by House lawyer Megan Barbero.

“I wonder if we should be involved with this dispute at all,” Griffith added.

Rogers said that if the House cannot enforce subpoenas, its constitutional role would be “stymied.”

The administration has directed current and former officials not to comply with congressional subpoenas for testimony and documents. McGahn, who left his post in October 2018, defied the subpoena but has said he would comply if ordered to by a court.

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.

The House on Dec. 18 passed two articles of impeachment – formal charges – accusing Trump of abuse of power and obstruction of Congress.

In a court filing, House lawyers said McGahn’s testimony was still vital to the impeachment proceedings and could affect the House’s strategy for the expected trial in the Republican-led Senate to determine whether Trump will be removed from office. The House has also not ruled out McGahn’s testimony giving rise to an additional article of impeachment.

Griffith noted that McGahn was “long gone” from the White House by the time of the Ukraine controversy.

Trump has denied wrongdoing and accused Democrats of trying to nullify the results of the 2016 election that brought him to power.

The Trump administration has argued that senior presidential advisers are “absolutely immune” from being forced to testify before Congress about official acts. The lower court judge rejected that argument, declaring that “no one is above the law.”

A report by Mueller, released by the Justice Department in redacted form in April, portrayed McGahn as one of the few figures in Trump’s orbit to challenge him when he tried to have the special counsel, who was appointed by the Justice Department in May 2017, removed.

According to the Mueller report, McGahn told Mueller’s team that Trump repeatedly instructed him to have the special counsel ousted and then asked him to deny having been so instructed when word of the action emerged in news reports. McGahn did not carry out either instruction.

FILE PHOTO: Don McGahn, the White House counsel, leaves a meeting with U.S. Senator Claire McCaskill at the Hart Senate Office Building in Washington, U.S., August 21, 2018. REUTERS/Alex Wroblewski/File Photo

Senate Democratic Leader Chuck Schumer is pressing for the Senate to hear testimony during the impeachment trial from current and former Trump aides who refused to cooperate with the House impeachment inquiry.

The appeals court will also hear arguments on Friday in a separate lawsuit by the House Judiciary Committee seeking access to grand jury evidence from the Mueller investigation. A judge ruled in October that the information should be produced to Congress, rejecting the Justice Department’s arguments that by law it must be kept confidential.

Reporting by Jan Wolfe and Lawrence Hurley; Editing by Will Dunham

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