Source: Politics<\/p>\n
The House’s effort to compel testimony from former Trump White House counsel Don McGahn will be delayed two months, a federal appeals court ordered Thursday, adopting a proposal by the Biden administration \u2014 over the objections of House Democrats \u2014 to postpone the proceedings.<\/p>\n
The order from the D.C. Circuit Court of Appeals makes it increasingly likely that a full two years will elapse without enforcement of the House\u2019s April 2019 subpoena of McGahn to obtain his testimony about alleged efforts by former President Donald Trump to obstruct special counsel Robert Mueller\u2019s investigation into ties between the Trump campaign and Russia.<\/p>\n
The case has become a poster child of sorts for the courts\u2019 inability to resolve congressional subpoena fights on a timeline that allows Congress to make practical use of the information. <\/p>\n
Indeed, the fact that the House has since impeached Trump twice \u2014 with the Senate acquitting him in both cases \u2014 makes the lingering battle over the McGahn subpoena feel like an afterthought. But for a time, the events the House wants to explore threatened to sink Trump\u2019s presidency \u2014 in its first year.<\/p>\n
Mueller\u2019s probe found that Trump repeatedly encouraged McGahn to fire or stifle the investigation, and that he once asked McGahn to create a false record about his efforts. McGahn\u2019s testimony on those episodes became some of the most explosive aspects of the special counsel\u2019s final report. Notes from McGahn and his deputy also provided some of the most detailed insight into the panic and chaos that enveloped the West Wing as Mueller launched his probe.<\/p>\n
The subpoena has a tangled history in the courts. The House issued it just days after the Justice Department released Mueller\u2019s redacted report. But McGahn refused to appear a month later, and the House Judiciary Committee sued to force him to appear. In response, the Trump administration claimed that close aides to the president were \u201cabsolutely immune\u201d from testifying.<\/p>\n
A District Court judge, Obama appointee Ketanji Brown Jackson, rejected those arguments<\/u><\/a> in November 2019. Last February, a D.C. Circuit panel ruled, 2-1, that the judiciary should not consider subpoena disputes<\/u><\/a> between the executive branch and Congress, potentially undercutting Congress\u2019 power to investigate wrongdoing. The full bench of the appeals court agreed to take the case and voted last August, 7-2, to reverse that decision<\/u><\/a>. <\/p>\n However, that ruling left open some potential arguments against the subpoena, and a D.C. Circuit panel again blocked enforcement<\/u><\/a>. The decision, again 2-1, said the House doesn\u2019t have a statute that specifically allows courts to enforce demands for testimony or documents. That is the question the full bench of the D.C. Circuit was set to take up on Tuesday \u2014 until the court issued the latest postponement.<\/p>\n President Joe Biden\u2019s victory changed some of the political dynamics at work, seemingly increasing the chances of an out of court resolution with the Democratic-controlled House.<\/p>\n On Wednesday, Justice Department lawyers asked the D.C. Circuit to postpone next week\u2019s arguments, citing the prospects for talks that might resolve the case.<\/p>\n But the House urged the appeals court to reject the proposed delay, arguing that it would simply serve as an extension of Trump\u2019s drawn-out effort to stall resolution of the case. The Justice Department would likely have to consult with the former president about the case, prolonging an already protracted and failed effort to reach agreement about the parameters of McGahn\u2019s testimony.<\/p>\n While the en banc sitting normally involves all 11 of the D.C. Circuit\u2019s active judges, the order<\/u><\/a> issued by the court on Thursday indicates that only seven judges intend to take part in the next arguments on the case, if they proceed.<\/p>\n Among those bowing out are Judge Merrick Garland, a Clinton appointee who has been nominated by Biden to become attorney general, and Judges Greg Katsas and Neomi Rao, Trump appointees who have recused themselves from some or all cases related to Mueller\u2019s investigation. The order Thursday also indicated that Judge Karen Henderson would not take part in the delayed arguments. The reason for her decision is unclear.<\/p>\n