The judges in that ruling worried that allowing the House to turn to the courts to resolve a subpoena dispute with the White House would lead to a flood of litigation. Though two of the three judges doubted the White House’s argument that McGahn is “absolutely immune” from testifying to Congress, the opinion said the House lawsuit failed altogether because the courts don’t have a say.
House lawyers said these arguments were bogus and left lawmakers with a menu of unpalatable options to obtain information the White House doesn’t want to provide. In addition to arresting people, the House could “use its appropriations power to shut down the government in response to executive stonewalling.”
“The panel’s belief that Congress can use ‘political tools to bring the Executive Branch to heel’ is sorely misguided,” House Counsel Doug Letter wrote in the filing. “Use of the appropriations process to grind the Government to a halt over a subpoena dispute would be extraordinary and immensely damaging to the whole Nation. Appealing to the public in the next election does not aid this Committee in its urgent inquiries. Impeachment is not an appropriate means to obtain information — indeed, President Trump ordered all subpoenaed documents withheld from Congress during the House’s impeachment inquiry.”
“Nor is referring the matter to DOJ for a contempt prosecution — a referral that DOJ has made clear it would not pursue … a proper substitute for judicial enforcement of subpoenas,” Letter added.
House counsel also noted that in the 2-1 ruling, the judges said impeachment is an option to force the production of information — a position that directly contradicts the argument made by White House lawyers during the impeachment trial that ended last month.
“[T]he panel did not acknowledge that, while this case was pending, President Trump’s White House counsel argued to the Senate that the president could not be impeached for obstruction of Congress because the House had not first sought judicial enforcement of its subpoenas,” the House noted, “a route that the panel has now held would have been futile, at the urging of President Trump’s DOJ.”
Letter also denied that allowing the House to sue for McGahn’s testimony would unleash a tsunami of litigation by Congress, and in fact denying the effort would ensure more stonewalling by Trump or future administrations.
“As this case has proven, such cases may take months or years to resolve; accommodation, wherever possible, is far preferable,” he argued. But without even the possibility of judicial enforcement, “[f]uture Presidents may direct widescale noncompliance with lawful Congressional inquiries, secure in the knowledge that Congress can do little to enforce a subpoena short of directing a Sergeant at Arms to physically arrest an Executive Branch officer … By encouraging Presidential stonewalling, the court effectively dismantles the accommodation process.”
McGahn was a central witness in special counsel Robert Mueller’s investigation of Russian interference in the 2016 election — and whether President Donald Trump criminally obstructed the probe. He testified that Trump ordered him more than once to end the investigation and produce a false record about his efforts.
The House sought McGahn’s testimony last May, but the White House asserted that he was “absolutely immune” from complying with a congressional investigation and ordered him not to appear. McGahn complied with that order even though he had left the White House months earlier.
The House sued to force McGahn’s testimony last August and won an initial ruling at the District Court level. The 2-1 appeals court decision reversed that opinion, and now the House is seeking full “en banc” appeals court review to try to wrest back the upper hand.
In its earlier arguments, the House said it needed McGahn’s testimony as part of its impeachment push against Trump, noting that McGahn could speak to a “pattern” of obstructive behavior by the president. Letter even indicated the House could seek McGahn’s testimony during the impeachment trial in order to garner new evidence.
Letter’s latest filing acknowledges the end of the impeachment trial last month, which resulted in a near-party-line acquittal on charges that Trump abused his power and obstructed congressional investigations. But the House counsel indicates that the House still wants McGahn’s testimony in order to consider potential legislation governing the president’s relationship with the Justice Department.
He also says impeachment could be back on the table if McGahn’s testimony reveals evidence of criminal obstruction of justice or other potential high crimes.
“The Committee would have to consider whether to recommend new articles of impeachment,” he wrote.