A federal appeals court has upheld a House subpoena for testimony from President Donald Trump’s former White House counsel Don McGahn.
The U.S. Court of Appeals for the D.C. Circuit ruled Friday, 7-2, that McGahn must appear and testify, but the court left open the question of what questions the former close adviser to Trump will be required to answer from House Judiciary Committee lawmakers.
The Trump administration could ask the Supreme Court to step in to put the ruling on hold, which would head off the political spectacle of McGahn being called before a Democrat-led Congressional panel before the November election.
The Justice Department argued in the case that under the Constitution, the courts should not enforce House subpoenas demanding testimony or records from Executive Branch officials.
But the D.C. Circuit majority rejected that position, drawing heavily on a Supreme Court ruling last month on separate cases involving House demands for the president’s financial records.
Writing for the majority, Judge Judith Rogers noted that McGahn’s testimony was sought in connection with the House’s efforts to pursue its constitutional power to impeach the president.
“To level the grave accusation that a President may have committed ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the House must be appropriately informed. And it cannot fully inform itself without the power to compel the testimony of those who possess relevant or necessary information,” wrote Rogers, an appointee of President Bill Clinton.
McGahn was a central witness in special counsel Robert Mueller’s investigation of Russian interference in the 2016 election. He told investigators about Trump’s repeated attempts to sideline Mueller’s probe and create false records about it. That evidence became a key component of Mueller’s investigation into whether Trump obstructed justice.
The House intended to continue that investigation after Mueller concluded and appeared to leave the ball in Congress’ court, but efforts to secure McGahn’s testimony have been tied up in legal proceedings for a year. As the McGahn litigation dragged out, the House voted last December to impeach Trump and the Senate held a trial early this year.
Trump was acquitted, without any testimony from McGahn, but the House pressed on in court to vindicate its right to demand testimony from the former counsel.
In the new en banc ruling, the federal appeals court divided cleanly along ideological lines. All seven judges in the majority are Democratic appointees, while the two dissenters were appointed by GOP presidents.
The decision overturned a 2-1 decision a smaller panel of the same court issued in February. The Trump administration picked up no additional support for its position in Friday’s decision. The two judges who issued the majority opinion in February — Karen Henderson and Thomas Griffith — were the sole dissenters in the en banc ruling.
The D.C. Circuit’s two other Republican appointees — Greg Katsas and Neomi Rao — recused from the case.
The court based its decision Friday in part on White House intransigence toward the House’s impeachment investigation, noting that while prior disputes between Congress and the White House had been resolved through negotiation, Trump had flatly refused to participate, defying centuries of tradition.
“The apparently unprecedented categorical direction by President Trump that no member of the Executive Branch shall cooperate with the Committee’s impeachment investigation ... likely explains the infrequency of subpoena enforcement lawsuits such as the present one,” Rogers wrote, citing a letter from White House counsel Pat Cipollone to Speaker Nancy Pelosi last October rejecting all cooperation.
The ruling is also notable for its heavy reliance on the Supreme Court’s recent decision in a separate attempt by the House to access Trump’s financial records from his accounting firm, Mazars USA. Rogers cited the decision 16 times to explain why the House met the burden to show why McGahn must cooperate with its inquiry.