WASHINGTON (AP) — The federal appeals court in Washington, D.C., is giving the House another shot at forcing former White House counsel Don McGahn to appear before Congress.
Nine of the Democratic-dominated court’s 11 judges are hearing arguments by telephone Tuesday in a dispute between House Democrats and President Donald Trump’s administration over a subpoena for McGahn’s testimony that was issued a year ago by a House committee.
The hearing, with live audio available on the website of the U.S. Court of Appeals for the District of Columbia Circuit, comes two months after a three-judge panel of the court ruled that judges have no role to play in the subpoena fight between Congress and the White House over the testimony of high-ranking administration officials.
The full court threw out that initial ruling when it opted for new arguments. Tuesday’s session also includes a separate dispute over the House’s effort to stop the Trump administration from spending billions of dollars that Congress didn’t authorize for a wall on the U.S.-Mexico border.
Both cases turn on whether the House can seek the help of federal judges.
Time is growing short for Democrats, who want McGahn’s testimony before the November elections. But it’s unclear how salient the issue of Russia’s interference in the 2016 election will be now that the coronavirus outbreak has dramatically altered life in the U.S., with more than 55,000 people dead and 26 million out of work.
The House Judiciary Committee first subpoenaed McGahn in April 2019 as it examined potential obstruction of justice by the Republican president 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, as the administration claimed, absolute immunity from testifying to Congress.
But the appeals court judges said in a 2-1 ruling that the case should be dismissed because the Constitution forbids federal courts from refereeing this kind of dispute between the other two branches of government.
Two Republican-appointed judges, Thomas Griffith and Karen Henderson, were in the majority, and Judge Judith Rogers, put on the court by Democratic President Bill Clinton, dissented.
Trump’s two appointees to the court, Judges Gregory Katsas and Neomi Rao, are not taking part in the case.
House lawmakers had sought McGahn’s testimony because he was a vital witness for Mueller, whose report detailed Trump’s outrage over the investigation into Russian interference in the 2016 election and the president’s efforts to curtail it.