In fact, the fact that the House has since impeached Trump twice – with the Senate absolving him in both cases – makes the lingering battle over McGahn’s subpoena seem like an afterthought. But for a time, the events the House wants to explore threatened to sink the Trump presidency – in its first year.
Mueller’s investigation found that Trump repeatedly encouraged McGahn to fire or stifle the investigation, and that he once asked McGahn to create a false record of his efforts. McGahn’s testimony of these episodes became one of the most explosive aspects of the special council’s final report. Notes from McGahn and his deputy also provided some of the most detailed insight into the panic and chaos that engulfed the west wing when Mueller launched his probe.
The subpoena has a complicated history in the courts. The House issued it a few days after the Justice Department released Mueller’s written report. But McGahn refused to appear a month later, and the House Judiciary Committee sued to force him to appear. In response, the Trump administration said that advisers close to the president were “absolutely immune” to testifying.
A District Court judge, appointed by Obama, Ketanji Brown Jackson, rejected these arguments in November 2019. Last February, a DC Circuit panel decided, by 2 to 1, that the judiciary should not consider subpoena disputes between the Executive Branch and Congress, potentially undermining Congress’s power to investigate irregularities. The entire bench of the appeals court agreed to take the case and voted 7-2 last August to reverse that decision.
However, that decision left some potential arguments open against the subpoena, and a DC circuit panel again blocked application. The decision, again 2-1, said the House does not have a statute that specifically allows the courts to execute demands for testimonies or documents. That is the question that the entire DC Circuit bench was set to answer on Tuesday – until the court issued the last postponement.
President Joe Biden’s victory changed some of the political dynamics at work, apparently increasing the chances of an out-of-court resolution with the Democratic-controlled House.
On Wednesday, Justice Department attorneys asked the DC Circuit to postpone next week’s arguments, citing prospects for negotiations that could resolve the case.
But the House asked the appeals court to reject the proposed delay, arguing that it would simply serve as an extension of Trump’s protracted effort to delay the resolution of the case. The Justice Department would probably have to consult the former president on the case, prolonging an already long-standing and failed effort to reach an agreement on the parameters of McGahn’s testimony.
Although the en banc session normally involves all 11 active judges on the DC Circuit, the order issued by the court on Thursday, indicates that only seven judges intend to take part in the next arguments of the case, if they proceed.
Among those who were rejected are Judge Merrick Garland, appointed by Clinton who was appointed by Biden to become Attorney General, and Judges Greg Katsas and Neomi Rao, appointed by Trump who refused to participate in some or all of the related cases to Mueller’s investigation. Thursday’s order also indicated that Judge Karen Henderson would not participate in the delayed allegations. The reason for his decision is not clear.