The Department of Justice, days after arguing that the U.S. House of Representatives doesn’t have a right to the testimony of former White House counsel Don McGahn, said Monday that the articles of impeachment passed by the House “eliminate the need” to quickly resolve the McGahn subpoena dispute and “underscore the reasons why this Court should dismiss or deny the Committee’s suit without adjudicating the subpoena’s validity.”
In the 10-page filing, DOJ repeatedly pointed to the president’s impeachment for abusing his power and obstructing Congress as the primary reason why the fight over the McGahn subpoena isn’t as important as the House Judiciary Committee claims. What’s more, DOJ said that it would be “of questionable propriety” if the U.S. Court of Appeals for the District of Columbia decides not stay out of this.
“Indeed, if this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial,” DOJ argued. “That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial.”
The DOJ argument was basically this: the passing of articles of impeachment didn’t resolve the central dispute about whether a current or former close presidential advisor to the president can be compelled to testify before congressional investigators, but it did undercut the argument that the McGahn matter is urgent. Per DOJ:
The articles of impeachment adopted by the House of Representatives do not render this case moot. In its complaint, the Committee alleged that, wholly apart from impeachment proceedings, McGahn’s testimony would assist the Committee in “assess[ing] the need for remedial legislation and to conduct oversight.” JA17. Whether or not that allegation is correct on the merits, it survives the House’s impeachment vote and thus the suit is not moot—which also renders irrelevant whether or not the subpoena was ever validly justified by the House’s impeachment power in the first place.
Although the suit is not moot, the impeachment vote affects the extent to which expedited consideration remains necessary. The Committee opposed “the Department’s request for a stay pending appeal because the delay from such a stay would impair the House’s ongoing impeachment inquiry.” Dist. Ct. Doc. 51, at 1. In doing so, the Committee stated that “speedy judicial action is needed to avoid hampering the House’s impeachment investigation.”
That justification no longer applies.
The DOJ said that there is no need to speed things up more than they already have been, since oral arguments have been set for Jan. 3, 2020.
The U.S. District Court in November ordered McGahn to testify.
“[I]t is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny,” U.S. District Judge Ketanji Brown Jackson wrote. “Thus, when presented with a case or controversy, it is the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful.”
“Similarly, the House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required. Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on separation-of-powers grounds–essentially, that the Constitution’s scheme countenances unassailable Executive branch authority–is baseless, and as such, cannot be sustained,” Jackson continued.
DOJ appealed and appellate briefs followed, including the supplemental brief we now discuss.
The DOJ also argued that the articles of impeachment “affect [the McGahn] case in two other ways”: House Judiciary’s “primary justification for its decision to sue no longer exists,” and “the article of impeachment addressing purported obstruction of Congress relies in part on the judicial proceedings in this very case” [ensuing citations removed].
The House Judiciary Committee’s impeachment report, for example, cites the district court’s characterization of the Justice Department’s litigating position in this case for the proposition that the President “insists that unfounded doctrines, such as absolute immunity, preclude testimony by many current and former officials who might shed light on any Presidential abuses.”
Pursuing an interbranch suit in court while simultaneously pursuing impeachment, and then using that litigation as part of the impeachment proceedings, is “far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement.” But that is exactly what the Committee has done. The effect of that choice is to “embroil the federal courts in a power contest nearly at the height of its political tension.”
But wait, there’s more.
The Judiciary Committee has responded by repeating something that garnered a lot of attention last week: the McGahn case is still important and “relevant the Committee’s ongoing investigations into Presidential misconduct and consideration of whether to recommend additional articles of impeachment.”
The Judiciary Committee’s separate impeachment investigation is based on the findings contained in the report on election interference and obstruction of justice produced by former special counsel Robert Mueller. House General Counsel Douglas N. Letter said last week that Judiciary Committee Democrats are determined to obtain additional grand jury materials produced in the course of Mueller’s investigation.
Attorneys for House Democrats have noted that Trump publicly contradicted what McGahn told Mueller. They maintain that the circumstances require in-person testimony from McGahn regarding the president’s attempts to discredit him.
Trump claimed in June that McGahn lied under oath when he told Mueller: the president, on two occasions, asked him to put into motion Mueller’s firing; directed him to create a false record denying that this occurred.
“Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation,” Mueller concluded.
Trump said publicly that McGahn lied to make himself look like a good lawyer.
You can read the rest of the filing below.
Colin Kalmbacher contributed to this report.
Editor’s note: this story was updated post-publication to include: the House Judiciary Committee’s response to the DOJ filing additional context about McGahn’s testimony to Mueller; and the president’s public response to that testimony.
[Image via Drew Angerer/Getty Images]