don mcgahn
don mcgahn

By Jack Phillips

The House Judiciary Committee filed a brief in an appeals court Monday that it wants former White House counsel Don McGahn to testify to determine whether more articles of impeachment are warranted against President Donald Trump.

“If McGahn’s testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly—including, if necessary, by considering whether to recommend new articles of impeachment,” the brief stated.

The committee’s counsel, Doug Letter, argued that a subpoena of McGahn, who left the White House in 2018, is still relevant despite the House having voted on two articles of impeachment against Trump—obstruction of Congress and abuse of power—last week mostly along party lines. The latest brief was filed to the D.C. Circuit Court of Appeals.

The committee also argued that his testimony could help the House present its case when the impeachment trial begins in the Senate.

McGahn was subpoenaed in March as the committee was investigating whether Trump potentially obstructed Congress. Trump told McGahn not to comply with the Democrats’ subpoena, and the Department of Justice said Trump and White House officials have immunity from congressional subpoenas.

“When the Committee subpoenas another Presidential aide—whether as part of its ongoing investigations or in future investigations—it is likely again to confront [Department of Justice’s] theory that Presidential advisors are absolutely immune from compelled Congressional testimony,” the House Judiciary’s filing stated, as reported by The Hill. “The Court should address and reject that theory now.”

President Donald Trump and First Lady Melania Trump greet troops at the signing ceremony for S.1709, The National Defense Authorization Act for Fiscal Year 2020 in Joint Base Andrews, Maryland on Dec. 20, 2019. (Tasos Katopodis/Getty Images)

The Justice Department argued that passage of the articles of impeachment mean that McGahn doesn’t have to answer to Congress for further questioning.

In a court filing, the federal agency argued that the House’s impeachment vote “eliminate[d] the need” for McGahn to answer congressional questioning.

“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,” the DOJ argued. “That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial.”

Arguments will be heard about the case on Jan. 3.

In November, the U.S. District Court 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, who was appointed by former President Barack Obama, wrote at the time. “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.”

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