Appeals court wrestles with Mueller evidence, Trump aide’s testimony

A federal appeals court in Washington on Friday grappled with a pair of cases involving fights between House Democrats and the White House over the release of evidence that Democrats say could be relevant to President TrumpDonald John TrumpIran foreign minister warns killing of general is ‘extremely dangerous and foolish escalation’ Congress reacts to U.S. assassination of Iranian general Trump tweets American flag amid reports of strike against Iranian general MORE’s impeachment.

The potentially groundbreaking separation of powers cases pit the House Judiciary Committee against the Justice Department over the enforcement of a subpoena against former White House counsel Don McGahn and the disclosure of secret grand jury materials stemming from former special counsel Robert MuellerRobert (Bob) Swan MuellerSchiff: Trump acquittal in Senate trial would not signal a ‘failure’ Jeffries blasts Trump for attack on Thunberg at impeachment hearing Live coverage: House Judiciary to vote on impeachment after surprise delay MORE’s investigation.

Some of the sharpest exchanges came amid questioning by judges on the D.C. Circuit Court of Appeals over whether the courts should wade into such a politically charged debate, or if Congress and the White House should be left to resolve the disputes on their own.  

“The question is whether the Constitution allows you to pull the courts in,” Judge Thomas Griffith, a George W. Bush appointee, told an attorney for the House Judiciary Committee in the McGahn case, noting instances where the feuding branches “duked it out” through the political process.

Griffith and Judge Judith Rogers, a Clinton appointee, were assigned to hear both cases. Karen Henderson, a George H.W. Bush appointee, rounded out the three-judge panel in the McGahn case, and Judge Neomi Rao, a Trump appointee, joined the panel in the Mueller case.

The dispute over Mueller grand jury materials reached the D.C. Circuit Court after a lower court ruled against the Justice Department, prompting the agency’s appeal. 

In her October opinion, D.C. District Judge Beryl Howell, an Obama appointee, ruled that House Democrats’ impeachment inquiry, then in its early stages, helped to justify the release of grand jury materials stemming from Mueller’s Russia probe.

But that justification no longer applies, a Justice Department lawyer told the D.C. District Court today. Neither of the two House-passed impeachment articles — abuse of power related to Trump’s Ukraine dealings and obstruction of Congress — touch on the Mueller probe, he said.

The lower court decision was based on “a need that no longer exists,” said Mark Freeman, a department attorney.

Lawyers for the House Judiciary Committee in both cases argued that the concealed evidence could either spawn new impeachment articles, or help demonstrate a pattern of misconduct by Trump that would bolster the case for the House-passed articles in a Senate trial.

House Democrats would look at the disclosed materials to “inform whether to recommend more articles,” Douglas Letter, a lawyer for the committee, told the court after being prompted by Griffith.

“That option is on the table,” Letter said. “No doubt.”

Letter added that he had discussed the legal arguments with House Speaker Nancy PelosiNancy PelosiGOP senator plans to seek dismissal of impeachment articles Meadows says Matt Gaetz should be part of Trump’s impeachment defense team ‘Queer Eye’ star Jonathan Van Ness to campaign with Warren in Iowa MORE (D-Calif.), and that they represented the position of the House.

Mueller’s nearly two-year probe focused on Moscow’s 2016 election interference and possible collusion with the Trump campaign, as well as the president’s alleged obstruction of justice.  

House Democrats say the underlying grand jury materials are needed to assess whether the subjects of the probe, including Trump, misled investigators. They say McGahn’s account is critical to gaining a fuller understanding of Trump’s alleged obstruction of Mueller’s investigation.

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