Appeals court hears arguments over McGahn testimony and press on impeachment state of play

President Trump

Federal appeals court judges on Friday asked multiple questions about the state of play in impeachment proceedings, pushing Trump administration attorneys on its refusal to comply with congressional subpoenas and how former White House counsel Don McGahn’s testimony about President Donald Trump during the Russia investigation matters now during impeachment.

The almost 90 minutes in the US Court of Appeals courtroom in Washington, DC, covered a dense range of legal questions, including whether courts can resolve political disputes between Congress and the executive branch.

Hashim Mooppan from the Justice Department, which is defending McGahn, warned the appeals court to stay out of the House-White House fight, at risk of politicizing the court. “You can be assured the opinion this court enters will be waived on the floor of the Senate by one side or another,” he told the three appellate judges.

“Has there ever been an instance of such a broad scale defiance? “Judge Thomas Griffith asked, about the Trump administration’s wide assertion that its top officials would comply with congressional subpoenas. “Has that ever happened before? No, it hasn’t.”

As Mooppan argued that the courts shouldn’t be involved, Judge Judith Rogers, leaning far back in her chair, cut in, “Takes two!”

At another point, Griffith asked if the House really needed McGahn for its current impeachment proceeding, which focuses on the President’s solicitations of Ukraine after McGahn left the West Wing. “You’re here because of impeachment,” he said.

Griffith asked the House lawyer if additional articles of impeachment against Trump were coming, like regarding obstruction of justice, to which McGahn could testify.

“You have authority to say this from the Speaker of the House?” the judge asked.

Megan Barbero, representing the House Judiciary Committee, dodged giving a direct answer. Instead, she said Congress could use McGahn’s testimony to inform the current impeachment trial, especially regarding Trump’s obstruction of Congress.

The DC Circuit Court of Appeals is considering whether the House should get access to confidential documents from the Mueller investigation to consider Trump’s reception of foreign political help, and if the White House should be able to block top advisers from complying with congressional subpoenas.

So far, federal trial-level judges have given House Democrats the greenlight for access to those Mueller documents. But the House still has yet to review confidential testimony and details collected during the Mueller investigation, or have the opportunity to question McGahn, perhaps the top witness to Mueller on Trump’s attempts to fire special counsel Robert Mueller and obstruct the Russia investigation.

The House sued over McGahn’s testimony and access to grand jury-related redactions in the Mueller report in the weeks after the Mueller investigation ended. At the time, House Democrats questioned more about Mueller’s findings, months before the current impeachment proceedings began about the President’s solicitations of Ukraine.

Though the House impeached Trump for actions separate from what Mueller investigated, the special counsel’s two-year-long probe set a tone in the impeachment inquiry.

Judges so far have pointed out how closely the court fights reflect upon current proceedings about Trump.

“Presidents are not kings,” DC District Judge Ketanji Brown Jackson wrote in her November opinion that said McGahn must testify and the White House couldn’t block congressional subpoenas for its former top officials. An appellate ruling about McGahn could quickly become the determinate on how much the House or Senate can access top Trump officials the White House has blocked from testimony during impeachment. The White House has used the same reasoning to block McGahn as it’s used to stop other witness from speaking to Congress about Trump’s approach to Ukraine.

Separately, Chief Judge Beryl Howell of the DC District Court, who oversaw Mueller’s grand jury, wrote in her opinion that the House should get access to details Mueller collected through a grand jury so Congress could continue investigating the President. Howell’s opinion was an early and important legal endorsement of the House impeachment proceedings, even before the full House voted to authorize the inquiry.

“Congress need not redo the nearly two years of effort spent on the Special Counsel’s investigation,” Howell wrote in October. The House Judiciary Committee “needs the grand jury material” Mueller collected, she added in her opinion, “to resolve questions — including the ultimate question whether the President committed an impeachable offense — that the Special Counsel simply left unanswered.”

In a previous court argument related to the Mueller grand jury case, the House attorneys told judges the Democrats could still pursue impeaching the President for other reasons, even after the current impeachment regarding Ukraine has passed.

Any decisions in the cases, made by panels of three appellate judges for each case, are likely to face further appeals tests, including potentially before the Supreme Court.

Judge Thomas Griffith is an appointee of George W. Bush and Judith Rogers was nominated by Bill Clinton. Judge Neomi Rao, a Trump appointee, will round out the panel on the grand jury secrets case, while Judge Karen Henderson, a George H.W. Bush appointee, will be the third judge to hear the McGahn arguments.

This story has been updated with additional developments.