A federal appeals court has approved a request from the U.S. House of Representatives for a new hearing in their effort to compel former White House counsel Don McGahn to testify before Congress.
The full panel of the U.S. Court of Appeals for the District of Columbia granted the House Judiciary Committees petition for rehearing en banc—or before the full court—in an order on Friday (pdf), just two weeks after a three-judge panel ruled that McGahn did not have to comply with the committees subpoena. Fridays order also vacates the previous ruling issued on Feb. 28 (pdf).
A hearing or rehearing before the full court, or en banc, is not ordinarily ordered unless “en banc consideration is necessary to secure or maintain uniformity of the courts decisions” or “the proceeding involves a question of exceptional importance.”
McGahn, who was viewed as a key witness in then-special counsels Robert Muellers Russia investigation, was subpoenaed by the committee in April to provide documents and appear before lawmakers as part of the investigation into alleged obstruction of justice by President Donald Trump—something that Mueller failed to establish in his investigation. Trump has denied any wrongdoing.
House Democrats have launched a slew of investigations, which included the subpoena of McGahn, in an effort to find information that could lead to the impeachment of the president.
The White House blocked his appearance in May, asserting executive privilege over the documents. This prompted House Democrats to subsequently sue McGahn in August in an attempt to enforce the subpoena.
In November, a district court judge ruled that McGahn must testify before the House, saying that executive branch officials are “not absolutely immune” from the compulsory congressional process, even if the president expressly directs the officials non-compliance. This prompted the Justice Department (DOJ) to appeal the decision to the appeals court.
The appeals court ruled 2-1 on Feb. 28 that McGahn was not required to testify, agreeing with the DOJs argument that the Constitution bars federal courts from resolving disputes between the legislative and executive branches.
“If federal courts were to swoop in to rescue Congress whenever its constitutional tools failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual overseer[s] of our elected officials. That is not the role of judges in our democracy, and that is why Article III compels us to dismiss this case,” JuRead More – Source