The Justice Department argued Monday that the House’s move to impeach President Trump eliminated the need for an appeals court to fast-track a case about the House subpoena of Don McGahn.
The argument came in court filings, which the court requested last week after the House voted on impeachment articles that were not directly related to the Trump conduct about which McGahn could testify.
The Justice Department argued early Monday that how the impeachment proceedings unfolded did not moot the case entirely, because the House is also alleging in the lawsuit that there could be a legislative purpose in its desire to have McGahn testify.
However, the Justice Department asserted that the impeachment proceedings — and specifically the House’s move to point to the DOJ’s posture in the case to allege that Trump was obstructing Congress — backed its underlying arguments for why the courts should not get involved in settling the dispute over the McGahn subpoena.
“Indeed, if this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial,” the Justice Department said. “That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial.”
The McGahn subpoena lawsuit was filed by the House in August, after McGahn — on the direction of Trump — blew off a demand that he testify about the Trump conduct outlined in special counsel Robert Mueller’s report. A district court judge last month backed enforcement of the subpoena, prompting McGahn to appeal to the U.S. Court of Appeals for the D.C. Circuit.
The dispute predates the investigation into the Ukraine conduct that became the focus of the impeachment articles the House adopted last Wednesday. However, at previous stages in the litigation the House suggested that Trump’s behavior in the Mueller probe was a part of the impeachment inquiry.
The appeals court is still deciding whether to extend a temporary pause placed on the lower court’s ruling while the appellate court decides the case on the merits.
“There is no need for any additional expedition of this case,” the Justice Department said Monday.
A hearing is scheduled for Jan. 3:
Corrected: A previous version of this story incorrectly said U.S. Circuit Court Judge Neomi Rao sat on the panel presiding over the McGahn case. She sits on the panel presiding over the Mueller grand jury materials case.
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