DC Court of Appeals rules against House subpoena of former White House Counsel Don McGahn

In a 2-1 ruling, the U.S. Court of Appeals in Washington, D.C., Friday turned aside the House Intelligence Committee's subpoena issued before the impeachment hearings that began in November.

The ruling overturns a lower court decision that ordered McGahn to appear before the House panel. The House Judiciary Committee attempted to obtain testimony from McGahn in April on matters relating to special counsel Robert Mueller's investigation into Russian election interference.

Citing executive privilege, the White House blocked him from testifying. Democrats viewed a potential testimony from the former White House counsel as important to the process despite the articles of impeachment centering around events that occurred after McGahn left the White House.

In December, U.S. Circuit Judge Ketanji Brown had ruled that the president had no power to defy a Congressional subpoena. That ruling ignored precedent and the Justice Department argument that McGahn is immune from being compelled to testify, to protect the confidential advice that all presidents receive from top aides.

Judges Thomas Griffith and Rogers wrote opposing opinion on the 2-1 decision. (Photo: ACV Reports)

Appeals Court Judge Thomas Griffith wrote the majority opinion, stating that the Constitution forbids federal courts "from becoming an ombudsman" that resolves disputes between the executive and legislative branches of government. The decision hands the president a key legal victory and could close the door for testimony from some of his closest aides whom House Democrats have sought to hear from.

In her dissenting opinion, U.S. Court of Appeals for the D.C. Circuit Judge Judith Rogers said the court's decision "all but assures future Presidential stonewalling of Congress, and further impairs the House's ability to perform its constitutional duties."

The committee subpoenaed McGahn in April 2019 to ask about potential obstruction of justice by Trump during special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

The McGahn case deals with the Russia probe rather than the Ukraine inquiry that resulted in the House impeaching Trump on Dec. 18. But the Senate acquitted him handily on Feb. 5 of charges that he abused the power of his office and obstructed Congress.

Despite that verdict, House Democrats said they would continue to investigate Trump on a variety of subjects. The Supreme Court is scheduled to hear two cases March 31 where House panels are seeking access to Trump's financial records from his accountant, Mazars USA, and his lender, Deutsche Bank.