The court fight, now in its fourth round at the DC Circuit Court of Appeals, has taken on major questions about separation of powers between an aggressively investigating Congress and a noncompliant White House and about the federal judiciary’s ability to address interbranch standoffs.
The House also wants the full circuit court to reject a Trump administration approach of claiming “absolute immunity” for its officials, which has allowed it to ignore multiple subpoenas in major Trump congressional investigations, including ones related to then-Special Counsel Robert Mueller’s obstruction probe and during Trump’s impeachment hearings.
“The Committee maintains a right to and need for McGahn’s testimony. The Committee, whose Chairman will not change in the next Congress, will reissue the subpoena, consistent with House Rules and precedent. This case will thus continue, and nothing about the end of this Congress will prevent this Court from resolving it,” the House committee wrote on Wednesday.
Republican Rep. Jim Jordan of Ohio, the committee’s ranking member, said in a letter on Wednesday that Republicans opposed re-subpoenaing McGahn and criticized Chairman Jerry Nadler, a New York Democrat, for having a “fanatical obsession with attacking” Trump.
Mueller, in documenting several instances of possible obstruction by Trump as the President sought to shut down the Russia investigation, often relied on McGahn’s testimony. But McGahn never described what he had witnessed outside of closed-door interviews with the FBI and prosecutors.
Ultimately, the special counsel outlined on multiple occasions how Trump’s behavior met the legal standard for an obstruction case. But, partly because of Justice Department policy that bars indicting a sitting president, Mueller left the choice on whether to indict Trump to the attorney general, and handed a report to Congress. Trump was not indicted.
The House did little to push an investigation into Trump based on Mueller’s obstruction findings, largely because the McGahn subpoena case and other lawsuits prompted by Trump and his Justice Department bogged investigative steps down in court.