WASHINGTON — A federal appeals court in Washington struggled Friday with whether it has a role to play in a fight between the Trump administration and House Speaker Nancy Pelosi over testimony and grand jury materials Democrats say they need in the lead up to a Senate impeachment trial and “ongoing inquiry into the president’s conduct.”
Judges on the U.S. Court of Appeals for the District of Columbia Circuit were considering two separation-of-powers lawsuits over a House subpoena for President Donald Trump’s former White House counsel Donald McGahn and secret evidence from former special counsel Robert Mueller’s Russia investigation.
Two of the three judges on the first panel — Thomas Griffith and Judith Rogers — seemed skeptical of the Trump administration’s broad claim that top presidential advisers like McGahn are “absolutely immune from compelled congressional testimony.”
“Has there ever been an instance of such broad-scale defiance of a congressional request for information in the history of the Republic? Has this ever happened before?” Griffith asked Justice Department Attorney Hashim Mooppan, before answering his own question, “No, it hasn’t.”
Mooppan disagreed with the judge’s characterization and warned the court against stepping into a “political food fight.” Choosing sides in a political dispute, he said, would undermine “public confidence in the court.”
The back-to-back court hearings came as lawmakers are scheduled to return to Washington early next week. Pelosi, D-Calif., has held off sending articles of impeachment — for abuse of power and obstruction of Congress — to the Senate over concerns about witnesses and documents for the trial.
Both lawsuits were filed before the formal start of impeachment proceedings centered on the president’s alleged effort to pressure Ukraine to conduct investigations that would benefit Trump politically.
Justice Department lawyers urged the court on Friday to stay on the sidelines because Congress has other tools — such as withholding appropriations, stalling nominations and impeachment — to deal with intransigence from the executive branch.
Judge Rogers, in response, refuted the idea that the Republican-controlled Senate would go along, saying “we have two branches of government at loggerheads.”
“Is there no role for the courts?” asked Rogers, a nominee of Bill Clinton. “Either they have to duke it out or nothing happens?”
The outcome of the cases may turn on Judge Griffith, a former Senate legal counsel nominated by George W. Bush, who participated in both panels. He pressed House lawyers about the relevance and continued need for McGahn’s testimony and the grand jury materials now that the House has voted to impeach the president.
“Are you here to say there may be a third article of impeachment?” Griffith asked attorney Douglas Letter, the House general counsel.
Letter said House lawmakers need the material to make decisions about how to present evidence in a Senate trial, and that the information could be used to determine whether to recommend additional articles of impeachment.
“Yes, that’s on the table. There is no doubt,” Letter said.
That argument appeared at odds with what House Democratic leaders have been saying privately for weeks. Pelosi’s leadership team had been eager to finish impeachment by the holiday season so they could return to discussing pocketbook issues the California Democrat believes will resonate with voters in 2020.
The notion of House lawmakers writing additional charges against Trump, including those stemming from Mueller’s findings, may be popular among progressive members. But they are not under serious consideration among leaders, who are loath to repeat a second impeachment saga before the 2020 election.
In the first case, the appeals court was reviewing a November decision from U.S. District Judge Ketanji Brown Jackson who upheld the Judiciary Committee subpoena for McGahn from August. The judge rejected the White House assertion that a president can overrule current or former aides’ “own will to testify,” calling it “a proposition that cannot be squared with core constitutional values, and for this reason alone, it cannot be sustained.”
The appeal was heard by Judges Karen LeCraft Henderson, Griffith and Rogers.
In the second case, the Justice Department is asking the D.C. Circuit to reverse a court order to disclose to the House certain grand jury evidence from Mueller’s investigation. Chief U.S. District Judge Beryl A. Howell in October ruled that the House was legally engaged in a judicial process that exempts Congress from secrecy rules that typically shield grand jury material.
House lawyers have said in court filings that lawmakers are continuing to examine whether Trump lied about his knowledge of Russian interference in the 2016 election in written responses to questions from Mueller’s investigators.
Howell called “extreme” the Justice Department’s position that despite legal rulings during the impeachment inquiry into Richard Nixon, courts in 1974 should not have given Congress materials from the Watergate grand jury.
Griffith referred several times to a ruling that he called the “gold standard” from then-Chief U.S. District Judge John Sirica, telling Justice Department attorney Mark Freeman, “you’ve got a lot of history going up against you.”
But even if the House were to prevail in one or both of the lawsuits, it is unclear that lawmakers would get access to the information they are seeking any time soon. Griffith noted that McGahn might still refuse to testify on claims of executive privilege even if ordered by the court to appear before the House committee.
Later, in response to a question from Judge Neomi Rao in the second case, Freeman could not say whether the Justice Department would even turn over the secret grand jury material if authorized or ordered to do so by the court.
Letter told the court that Congress should not have to resort to extremes to get the information it needs to carry out its constitutional duties. Without the court’s intervention, Letter suggested, the House could send the Sergeant at Arms of the House to pick up the material from the Justice Department; Congress could shut down the government to get the information. He even raised the prospect of a hypothetical gunbattle with the attorney general’s security detail.
“Every other president has cooperated with impeachment investigations. This is the first president who has not,” Letter said, calling the Justice Department’s position “astonishing.”
In response, Rao, a recent nominee of Trump, said, “This is the first time the House is seeking the court’s assistance to get this information.”
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The Washington Post’s Rachael Bade and Paul Kane contributed to this report.