WASHINGTON (Reuters) – U.S. appeals court judges on Friday appeared skeptical about broad legal arguments by President Donald Trump’s administration seeking to block a former White House lawyer from testifying to Congress as part of the impeachment effort against Trump, but also seemed wary about stepping into the heated political fight.
Judge Thomas Griffith asked tough questions of the Justice Department lawyer who argued on behalf of the administration and the lawyer for the Democratic-led House of Representatives Judiciary Committee that subpoenaed former White House Counsel Don McGahn, and could be the pivotal vote in deciding the case.
The case was being heard by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. Griffith questioned whether the court should decide the case at all, in part because McGahn’s testimony is not key to the two articles of impeachment against Trump approved by the House on Dec. 18.
Griffith, a Republican appointee, and Judge Judith Rogers, a Democratic appointee, questioned the administration’s arguments that the House panel has no legal standing to enforce its subpoena and that there is broad presidential immunity that applies to efforts to seek testimony from close advisers.
The other judge, Republican appointee Karen Henderson, said little.
The arguments came in the administration’s appeal of a Nov. 25 ruling by U.S. District Judge Ketanji Brown Jackson that McGahn must comply with the committee’s April subpoena.
The committee filed suit seeking to enforce its subpoena for McGahn to testify about Trump’s efforts to impede former Special Counsel Robert Mueller’s investigation that documented Russian interference in the 2016 election and numerous contacts between Trump’s campaign and Moscow.
Griffith asked whether there has ever been such “broad scale defiance” of congressional requests in U.S. history as has been exhibited by the Trump administration. The administration has directed current and former officials not to comply with congressional subpoenas for testimony and documents. McGahn, who left his post in October 2018, defied the subpoena but has said he would comply if ordered to by a court.
Griffith also noted that the Supreme Court has previously said that legislatures can have legal standing in such cases.
The committee’s lawsuit was filed in August, a month before the House launched its impeachment inquiry against the Republican president centering on his request that Ukraine investigate Democratic political rival Joe Biden and his son.
Griffith noted that McGahn was “long gone” from the White House by the time the Ukraine controversy unfolded. Griffith also appeared skeptical over some claims made by House lawyer Megan Barbero.
“I wonder if we should be involved with this dispute at all,” Griffith said.
‘THE TOUGH QUESTION’
Congress has other means to leverage cooperation from the executive branch such as refusing to fund the government, Griffith said.
“The question is whether the Constitution allows you to pull the courts … into this dispute, which historically has been fought out – duked out – between the political branches. To me that’s the tough question,” Griffith added.
Rogers said that if the House cannot enforce subpoenas, its “critical power in terms of checking abuse of presidential power” would be stymied.
Rogers appeared to reject the administration’s suggestion that the courts have no role in enforcing such subpoenas, saying that the Supreme Court has said that in some cases there is a role.
“That’s what I think we are struggling with here,” Rogers added.
The House has passed two articles of impeachment – formal charges – accusing Trump of abuse of power and obstruction of Congress.
In a court filing, House lawyers said McGahn’s testimony was still vital to the impeachment proceedings and could affect the House’s strategy for the expected trial in the Republican-led Senate to determine whether Trump will be removed from office. The House has also not ruled out McGahn’s testimony giving rise to an additional article of impeachment.
According to Mueller’s investigative report, McGahn told the special counsel’s team that Trump repeatedly instructed him to have Mueller ousted and then asked him to deny having been so instructed when word of the action emerged in news reports. McGahn did not carry out either instruction.
Trump has denied wrongdoing and accused Democrats of trying to nullify the results of the 2016 election that brought him to power.
The appeals court also heard arguments in a separate lawsuit by the House Judiciary Committee seeking access to grand jury evidence from the Mueller investigation. A judge ruled in October that the information should be produced to Congress, rejecting the Justice Department’s arguments that by law it must be kept confidential.
Reporting by Jan Wolfe and Lawrence Hurley; Editing by Will Dunham