U.S. appeals court judges on Friday appeared skeptical about broad legal arguments made by President Donald Trump's administration in seeking to block former White House Counsel Don McGahn from testifying to a congressional committee as part of the impeachment effort against Trump.
The case was being heard by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.
In the initial exchanges, two of the three judges questioned the administration's arguments that the House committee has no legal standing to enforce its subpoena and that there is broad presidential immunity that applies to efforts to seek testimony from close advisers. Arguments were continuing.
The arguments came in the administration's appeal of a Nov. 25 ruling by U.S. District Judge Ketanji Brown Jackson that McGahn must comply with an April subpoena from the Democratic-led House of Representatives Judiciary Committee.
Judge Thomas Griffith, a Republican appointee, and Judge Judith Rogers, a Democratic appointee, both asked probing questions of Justice Department lawyer Hashim Mooppan. The other judge, Republican appointee Karen Henderson, said little during the first part of the argument.
Griffith asked whether there has ever been such "broad scale defiance" of congressional requests in U.S. history as has been exhibited by the Trump administration. Griffith noted that the Supreme Court has previously said that legislatures can have legal standing in such cases.
Rogers said that if the House cannot enforce subpoenas, its constitutional role would be "stymied."
The committee filed suit seeking to enforce its subpoena for McGahn to testify about Trump's efforts to impede former Special Counsel Robert Mueller's investigation that documented Russian interference in the 2016 election and numerous contacts between Trump's campaign and Moscow.
The administration has directed current and former officials not to comply with congressional subpoenas for testimony and documents. McGahn, who left his post in October 2018, defied the subpoena but has said he would comply if ordered to by a court.
The committee's lawsuit was filed in August, a month before the House launched its impeachment inquiry against the Republican president centering on his request that Ukraine investigate Democratic political rival Joe Biden and his son.
The House on Dec. 18 passed two articles of impeachment — formal charges — accusing Trump of abuse of power and obstruction of Congress.
In a court filing, House lawyers said McGahn's testimony was still vital to the impeachment proceedings and could affect the House's strategy for the expected trial in the Republican-led Senate to determine whether Trump will be removed from office.
The House has also not ruled out McGahn's testimony giving rise to an additional article of impeachment.
Trump administration arguments
Trump has denied wrongdoing and accused Democrats of trying to nullify the results of the 2016 election that brought him to power.
The Trump administration has argued that senior presidential advisers are "absolutely immune" from being forced to testify before Congress about official acts. The lower court judge rejected that argument, declaring that "no one is above the law."
A report by Mueller, released by the Justice Department in redacted form in April, portrayed McGahn as one of the few figures in Trump's orbit to challenge him when he tried to have the special counsel, who was appointed by the Justice Department in May 2017, removed.
According to the Mueller report, McGahn told Mueller's team that Trump repeatedly instructed him to have the special counsel ousted and then asked him to deny having been so instructed when word of the action emerged in news reports. McGahn did not carry out either instruction.
Senate Democratic Leader Chuck Schumer is pressing for the Senate to hear testimony during the impeachment trial from current and former Trump aides who refused to cooperate with the House impeachment inquiry.
The appeals court will also hear arguments on Friday in a separate lawsuit by the House Judiciary Committee seeking access to grand jury evidence from the Mueller investigation. A judge ruled in October that the information should be produced to Congress, rejecting the Justice Department's arguments that by law it must be kept confidential.