Chattanooga Times Free Press

Appeals court revives House lawsuit for McGahn’s testimony

- BY MARK SHERMAN

WASHINGTON — A federal appeals court in Washington on Friday revived House Democrats’ lawsuit to force former White House counsel Don McGahn to appear before a congressio­nal committee, but left other legal issues unresolved with time growing short in the current Congress.

The full U.S. Court of Appeals for the District of Columbia Circuit voted 7-2 in ruling that the House Judiciary Committee can make its claims in court, reversing the judgment of a three-judge panel that would have ended the court fight.

The matter now returns to the panel for considerat­ion of other legal issues. The current House of Representa­tives session ends on Jan. 3. That time crunch means “the chances that the Committee hears McGahn’s testimony anytime soon are vanishingl­y slim,” dissenting Judge Thomas Griffith wrote. Judge Karen LeCraft Henderson also dissented.

A separate case in which the House is suing to stop the Trump administra­tion from spending billions of dollars that Congress didn’t authorize for the wall on the U.S.-Mexico border also was returned to a lower court.

Justice Department spokeswoma­n Kerri Kupec said the administra­tion would continue to seek dismissal of both cases.

“While we strongly disagree with the standing ruling in McGahn, the en banc court properly recognized that we have additional threshold grounds for dismissal of both cases, and we intend to vigorously press those arguments before the panels hearing those cases,” Kupec said.

The administra­tion could eventually appeal the outcomes to the Supreme Court, which last month rejected arguments by President Donald Trump to invalidate other congressio­nal subpoenas for his financial records.

Court cases over the testimony of presidenti­al advisers are rare because the White House and Congress typically reach an agreement, and Friday’s ruling, if left undisturbe­d, could enhance congressio­nal leverage in future disputes.

The Judiciary Committee first subpoenaed McGahn in April 2019 as it examined potential obstructio­n of justice by President Donald Trump during special counsel Robert Mueller’s Russia investigat­ion. Trump directed McGahn not to appear and the Democratic-led panel filed a federal lawsuit to force McGahn to testify.

A trial judge ruled in November that the president’s close advisers do not have the absolute immunity from testifying to Congress that the administra­tion claimed. Griffith and Henderson formed the majority when the appellate panel said in February that the Constituti­on forbids federal courts from refereeing this kind of dispute between the other two branches of government.

On Friday, the full court said the panel reached the wrong decision. Lawmakers can ask the courts “for judicial enforcemen­t of congressio­nal subpoenas when necessary,” Judge Judith Rogers wrote.

Congress needs detailed informatio­n about the executive branch for both oversight and impeachmen­t, she wrote.

 ?? AP FILE PHOTO/JACQUELYN MARTIN ?? White House counsel Don McGahn listens as he attends a 2018 confirmati­on hearing for Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee on Capitol Hill in Washington.
AP FILE PHOTO/JACQUELYN MARTIN White House counsel Don McGahn listens as he attends a 2018 confirmati­on hearing for Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee on Capitol Hill in Washington.

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