The fact that the House has since sued Trump twice – while the Senate acquits him in both cases – makes the ongoing battle over the McGahn subpoena feel like an afterthought. But the events the House wants to investigate have for some time threatened to bring down Trump’s presidency in his first year.
Mueller’s investigation found that Trump had repeatedly encouraged McGahn to dismiss or stifle the investigation, and that he had once asked McGahn to set a false record about his efforts. McGahn’s testimony about the deliveries became one of the most explosive aspects of the final advice’s final report. Comments from McGahn and his deputy also provided the most detailed insight into the panic and chaos that enveloped the West Wing when Mueller launched his investigation.
The summons has a messy history in the courts. The House issued it a few days after the Justice Department released Mueller’s edited report. But McGahn refused to appear a month later, and the judging panel sued to force him to appear. In response, the Trump administration has claimed that close aides to the president are “absolutely immune” to testifying.
A district court judge, Obama appointed Ketanji Brown Jackson, rejected these arguments in November 2019. Last February, a DC Circuit panel ruled 2-1 that the judiciary should not consider subpoena disputes between the executive and Congress, which could undermine the power of Congress to investigate wrongdoing. The full bench of the Court of Appeal agreed to take the case and voted 7-2 last August reverse the decision.
However, the ruling left some potential arguments against the summons and a DC Circuit panel again enforcement blocked. The ruling, again 2-1, states that the House does not have a law that specifically allows courts to enforce claims for evidence or documents. That’s the question the DC Circuit full bench would take on Tuesday – until the court issues the latest adjournment.
President Joe Biden’s victory changed some of the political dynamics at work, increasing the chances of an out-of-court decision with the Democratic-controlled House.
Lawyers on Wednesday asked the DC Circuit to postpone the arguments next week, citing the prospects for talks that could resolve the case.
But the House asked the Court of Appeals to reject the proposed delay, arguing that it would merely serve as an extension of Trump’s protracted effort to thwart the resolution of the case. The Justice Department is likely to have to consult with the former president on the case and extend an already protracted and failed attempt to agree on the parameters of McGahn’s testimony.
Although the and banc meeting normally involves all 11 active judges of the DC Circuit, the order issued by the court on Thursday indicates that only seven judges intend to take part in the following arguments on the case, if they continue.
Among those bending over are Judge Merrick Garland, a Clinton nominee nominated by Biden to become attorney general, and Judges Greg Katsas and Neomi Rao, Trump appointees who have withdrawn from some or all of the related cases with the investigation of Mueller. The order Thursday also indicated that Judge Karen Henderson would not participate in the delayed arguments. The reason for her decision is unclear.