A federal appeals court panel voiced mixed feelings Friday about a case examining whether the Trump administration can prevent former White House counsel Don McGahn from testifying in a congressional investigation of the president.
Judges on the U.S. Court of Appeals for the District of Columbia Circuit expressed skepticism of the administration’s claims that Mr. McGahn and other officials like him enjoy absolute immunity from appearing before Congress.
Judge Thomas Griffith said court precedent cut directly against that position. “The Supreme Court has repeatedly rejected…claims of absolute testimonial immunity,” he said.
Judge Griffith questioned whether there was any precedent for President Trump instructing people across his administration not to cooperate. “Has that ever happened before?” he asked.
But the judge also said that even if the court believed that Mr. Trump’s immunity claim “was extravagant,” there may be reasons for the court to stay out of the dispute between Congress and the White House.
“To me, that’s the tough question,” he said.
The House Judiciary Committee issued a subpoena to Mr. McGahn in April as part of its probe into possible misconduct by Mr. Trump, including whether he obstructed former special counsel Robert Mueller’s investigation into Russian interference in the 2016 U.S. presidential election. The White House told Mr. McGahn not to appear before the committee.
Mr. McGahn previously testified in the Mueller investigation, and the House committee said the former counsel was a key witness to alleged attempts by Mr. Trump to thwart the probe.
A trial judge ruled in November that the subpoena to Mr. McGahn was valid and that he had to comply.
Justice Department lawyer Hashim Mooppan on Friday argued the courts had no business refereeing the dispute between the two other branches of government, saying judicial intervention raised “serious separation of powers problems.”
Any ruling by the appeals court “will be waived on the floor of the Senate” during impeachment proceedings against Mr. Trump, Mr. Mooppan said. Congress, he added, has powers its can use against the president to encourage cooperation with subpoenas—such as its powers over funding the government—and shouldn’t be able to go to court.
Judge Judith Rogers suggested there was some role for the courts to play when the two other branches of government “are at loggerheads,” but she also said previous rulings by the Supreme Court made clear there were circumstances where judges shouldn’t intervene.
A third judge, Karen Henderson, didn’t ask many questions Friday.
House Associate General Counsel Megan Barbero argued the Trump administration was acting in an unprecedented way by broadly refusing to cooperate with congressional investigations. It was appropriate for the Judiciary Committee to seek an orderly resolution from the courts, she said.
Judge Griffith said the House’s recent impeachment of Mr. Trump related to his conduct with Ukraine was relevant for the analysis in the case. The judge said Mr. McGahn was “long gone” from the White House when Mr. Trump’s relevant Ukraine interactions took place last year.
Judge Griffith asked whether the House would consider another article of impeachment against Mr. Trump, unrelated to Ukraine, in which Mr. McGahn’s testimony would be relevant.
Ms. Barbero said that if Mr. McGahn’s testimony produced new evidence about Mr. Trump’s actions related to the Mueller investigation, the House could consider another article of impeachment. She also said Mr. Trump’s previous actions related to the Mueller investigation were relevant for one of the current articles of impeachment, on obstruction of Congress.
The McGahn litigation was one of two related cases before the appeals court Friday morning. The second examined whether the Judiciary Committee can have access to grand-jury materials from the Mueller investigation. The Justice Department is appealing a trial judge’s decision that sided with the committee.
Judges asked tough questions of both sides, including about how the litigation was affected by last month’s impeachment of Mr. Trump. The exchanges included a biting colloquy between House General Counsel Douglas Letter and Judge Neomi Rao over whether Congress had ways to obtain the material without the court compelling the Justice Department to turn it over.