The fact that House has indicted Trump twice since then – with the Senate acquitting him in both cases – makes the ongoing battle over the McGahn subpoena seem like an afterthought. But for a time the events the House wants to investigate threatened to lose Trump’s presidency – in his first year.
Mueller’s investigation found that Trump repeatedly encouraged McGahn to fire or suppress the investigation and that he once asked McGahn to create a false record of his efforts. McGahn’s testimony about these episodes became one of the most explosive aspects of the Special Adviser’s final report. Notes from McGahn and his deputy also provided some of the most detailed glimpses of the panic and chaos that enveloped the west wing when Müller launched his probe.
The subpoena has a tangled history in the courts. The house came out just days after the Justice Department published Mueller’s edited report. But McGahn refused to show up a month later, and the House Judiciary Committee sued him for making him show up. In response, the Trump administration claimed that close advisers to the president were “absolutely immune” to testimony.
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 Subpoena disputes should not be considered between the executive and Congress, potentially undermining the power of Congress to investigate wrongdoing. The full bench of the appeals court approved the case and voted 7-2 for last August reverse this decision.
This decision, however, left a few possible arguments against the subpoena and a DC circuit panel enforcement blocked again. The ruling, again 2: 1, said the House has no law expressly allowing the courts to enforce claims for testimony or documents. That is the question the full DC Circuit bank should be picking up on Tuesday – until the court issued the final postponement.
President Joe Biden’s victory changed some of the political dynamics at work and apparently increased the chances of an out-of-court settlement with the democratically controlled house.
On Wednesday, Justice Department attorneys asked the DC Circuit to postpone next week’s arguments, pointing to the prospect of talks that could resolve the case.
However, Parliament urged the Court of Appeals to reject the proposed delay, arguing that it would merely serve as an extension of Trump’s lengthy efforts to prevent the case from being resolved. The Justice Department would likely need to consult with the former president on the case to extend an already lengthy and failed effort to reach an agreement on the parameters of McGahn’s testimony.
While all 11 active DC Circuit judges are normally involved in the session the order The ruling issued by the court on Thursday indicates that only seven judges intend to join the next few arguments if they proceed.
Among those saying goodbye are Judge Merrick Garland, a Clinton appointee appointed by Biden as attorney general, and Justices Greg Katsas and Neomi Rao, Trump appointees, who have withdrawn from some or all of the cases related to Mueller’s investigation. Thursday’s ruling also indicated that Judge Karen Henderson would not participate in the belated arguments. The reason for their decision is unclear.