WASHINGTON _ President Donald Trump defeated congressional Democrats' effort to force former White House counsel Don McGahn to testify in their impeachment proceedings.
In a 2-1 decision, the federal appeals court in Washington Friday rejected the lawmakers' suit to enforce a subpoena issued days after special counsel Robert Mueller's report on Russian interference with the 2016 election. The House Judiciary Committee sought to question McGahn about events he'd witnessed during his 22-month tenure in the administration, which were recounted in the report.
The court said it lacked jurisdiction to decide a dispute between the executive and legislative branches. "The Constitution does not vest federal courts with some 'amorphous general supervision of the operations of government,'" Circuit Judge Thomas Griffith wrote for the majority, quoting in part from an earlier decision.
Though the ruling arrives too late to affect Trump's impeachment, which ended with his acquittal by the Senate earlier this month, the case had been seen as possibly setting limits on the assertion of executive privilege by the White House.
In her dissent, Circuit Judge Judith Rogers expressed concern that the White House would now be unrestrained in asserting privilege. The majority's decision "all but assures future Presidential stonewalling of Congress," she said.
The committee subpoenaed McGahn's testimony in April, but Trump ordered his former in-house attorney to spurn their demand he appear and answer questions on May 21. The legislators voted to hold him in contempt on June 11 and sued to compel his testimony two months later.
Washington U.S. District Judge Ketanji Brown Jackson rejected the Justice Department's arguments and, in a Nov. 25 ruling, said McGahn was required to abide by the subpoena, calling the claim of absolute immunity "baseless."
Friday's decision overrules Jackson, who was a 2013 appointee of President Barack Obama.
The decision was along party lines. Griffith, who was appointed by George W. Bush, was joined in the majority by Circuit Judge Karen LeCraft Henderson, a George H.W. Bush appointee. Rogers was named to the court by Bill Clinton.
The Judiciary Committee's press office didn't immediately return a call seeking comment.
McGahn, who stepped down as White House counsel in October 2018, figured prominently in Mueller's report as a witness to a string of incidents that prompted the special counsel to later say that he could not clear Trump of obstruction.
In one instance, in June 2017, the president called McGahn at home and ordered him to fire Mueller for alleged conflicts of interest, according to the report. The lawyer ignored the directive, deciding he'd rather resign, according to the report. About six months later, Trump pressured McGahn to deny press reports of the incident.
Trump also directed McGahn to dissuade then-U.S. Attorney General Jeff Sessions from recusing himself from any role overseeing the special counsel's investigation.
Responding to the House suit to compel McGahn's congressional testimony, Justice Department attorneys argued the committee can't sue the executive branch and, more significantly, that the former White House counsel was "absolutely immune from compelled testimony before Congress" as an immediate adviser to the president.
The lawmakers countered that the administration's immunity assertion, if upheld, would cripple Congress' ability to fulfill its oversight functions and to obtain information that may be relevant to an impeachment effort.
The appeals court panel heard arguments on Jan. 3.
