DOJ Tries To Use House’s Impeachment Vote Against It In McGahn Case

Attorney Donald McGahn leaves the Four Seasons hotel in New York, Thursday, June 9, 2016, after a GOP fundraiser. (AP Photo/Mary Altaffer)
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December 19, 2019 3:21 p.m.
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A day after the House voted to impeach President Trump, the Justice Department used that vote against the House as the administration asks an appeals court to reverse a judge’s decision backing a House subpoena of former White House Counsel Don McGahn.

The Trump administration referenced the impeachment proceedings in court briefs filed Thursday, ahead of oral arguments in front of the appellate court next month. Specifically, it alluded to the House’s decision not to include conduct from special counsel Robert Mueller’s report — and the episodes the House claimed it needed McGahn to testify about — in the articles it adopted Wednesday.

The Department argued the judiciary need not even involve itself in the dispute between Congress and the Executive Branch, “particularly where the Committee’s primary asserted need for subpoenaing McGahn — his potential testimony related to an obstruction-of-justice impeachment charge, see JA17 — appears to be moot.”

It brought up the matter again in a footnote urging the court, if it was to rule in favor of enforcing the McGahn subpoena, to at least delay such an order so that the administration had enough time to seek the Supreme Court’s intervention.

The Department asked the court to consider such a pause “especially given the serious question whether McGahn’s testimony is even relevant to the now-passed articles of impeachment.”

Even before the Department flagged the impeachment vote to the court on Thursday, the appeals court was interested in how the vote on articles unrelated to McGahn or Mueller affected the case.

Soon after the vote Wednesday night, the appellate judges ordered additional briefing from both parties “addressing the effect of the articles of impeachment on the issues in this case.”

Those briefs, which will be separate from what the Justice Department filed Thursday, are due Dec. 23.

The appellate panel hearing the House lawsuit seeking disclosure of Mueller’s grand jury material made a similar request as well Monday night.

In previous arguments in those two cases, the House suggested that it was still considering including Mueller conduct in its inquiry, even as news reports indicated a plan to focus on Trump’s Ukraine conduct. The House’s lawyers also argued that getting the Mueller-related testimony and materials would still be relevant even after the House adopted the impeachment articles, because the evidence could boost the case House managers made in the Senate trial.

The impeachment articles ultimately only vaguely vaguely referenced Russia’s 2016 interference and Trump’s obstruction of Mueller’s probe.

The U.S. Court of Appeals for the D.C. Circuit will hold hearings in both the McGahn case and on the Mueller grand jury case on Jan. 3.

Read the Justice Department’s filing below:

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