DC Circuit to hear case that could impact impeachment

On Jan. 3, the Court of Appeals for the DC Circuit is scheduled to hear oral argument in the case of House of Representatives v. Donald F. McGahn (1:19-cv-2379). The outcome could impact the impeachment of President Donald Trump "stalled" in the House of Representatives by Speaker Nancy Pelosi. Nothing in the Constitution precludes amending or adding to the current articles of impeachment. Thus, the appellate court's decision could potentially result in a new article of impeachment on obstruction being drafted by the House. The decision could also affect the evidence available to the House on the current obstruction article during the Senate trial, assuming it is available in a timely manner. Whether that evidence would be available at the trial would be up to the Senate majority.

McGahn, who is President Trump's former White House counsel, was subpoenaed by the Judiciary Committee some eight months ago. The subpoena sought information from McGahn concerning Trump's alleged misconduct and political interference with the Department of Justice and FBI, which was detailed in the Mueller report. As he has done with other officials, Trump directed McGann not to testify.

As a result, the committee sued to judicially enforce the subpoena. In the declaratory judgment complaint filed in the D.C. federal district court, the House Committee relied on the Muller Report. One reason given to support the subpoena was possible remedial legislation needed for dealing with election security, campaign finance, misuse of electronic data, and other matters. The other reason was to consider "any further steps under Congress' Article I powers," including whether to approve articles of impeachment with respect to Trump or any other administration official.

The district court (2019 WL 6312011) rejected the DOJ's jurisdictional arguments as well as the substantive argument on absolute testimonial immunity. It directed McGahn to comply with the subpoena. In late November, the DOJ appealed to the D.C. Circuit arguing that the subpoena was invalid for the same reasons argued below.

On Dec. 18, a curveball was thrown into the expedited appeal when the House of Representatives approved articles of impeachment against Trump for abuse of power and obstruction of Congress. As a result, the D.C. Circuit asked the parties to address the effect of the articles of impeachment, including whether the articles rendered the case moot and whether expedited consideration was still necessary.

In their supplemental briefing on the issue, the DOJ and House Committee agreed that the case was not moot. But the parties disagreed on the need for continued expedited consideration. The House argued in the district court that "speedy judicial action is needed to avoid hampering the House's impeachment investigation." Now that the House has adopted the articles of impeachment, the DOJ argues on appeal that urgency no longer exists. This would work to Trump's advantage because any unfavorable decision on the merits would be available long after the impeachment trial in the Senate is history. The DOJ also argues that the case should be dismissed for a new reason. It maintains that the court lacks jurisdiction, because now that articles have been adopted by the House the matter is within the sole jurisdiction of Congress. One problem is the argument brushes to one side that legislative investigatory authority also supported the validity of the subpoena.

The House argues on appeal that Trump's past efforts to undermine the investigations into foreign interference in elections detailed in the Mueller report directly relate to the obstruction of Congress article of impeachment adopted by the House. It argues "McGahn's testimony is also relevant to the Committee's ongoing investigations into Presidential misconduct and consideration of whether to recommend additional articles of impeachment." An additional article of impeachment is possible, but not likely.

On the issue of urgency, the House persuasively argues that McGahn's testimony is "critical to both the Senate trial and to the Committee's ongoing investigations." The threat to the Nation's welfare, it maintains, is at stake. With each passing day, "the Committee is further deprived of information that could assist in crafting responsible laws to protect ongoing criminal investigations and safeguard the integrity of America's elections in 2020." The case has been fully briefed on the merits, and no compelling reason exists for delaying the resolution without further delay. Finally, the fact that Trump has consistently refused to cooperate with Congress adds to the sense of urgency and need for judicial resolution. During the impeachment hearings, the Republicans publicly wailed that the Democrats should have gone to the courts. Now their wish may bear fruit. 