Former White House counsel Don McGahn free to defy congressional subpoena: appeals court

WASHINGTON (AP) — In a setback for Democrats in Congress, a federal appeals court ruled Friday that judges have no role to play in the subpoena fight between the House and President Donald Trump over the testimony of high-ranking administration officials.

The decision undoes a lower court ruling that would have forced former White House counsel Donald McGahn to appear before Congress. It is likely to doom efforts to get other high-ranking officials to testify in House investigations of Trump.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued the 2-1 decision. Lawmakers could ask the full appeals court to weigh in or appeal to the Supreme Court.

But time is getting short if the House hopes to have McGahn or other officials testify before November’s elections.

The House Judiciary Committee first subpoenaed McGahn in April 2019 as it examined potential obstruction of justice by the Republican president during special counsel Robert Mueller’s Russia investigation. The Democratic-led panel filed a federal lawsuit in August to force McGahn to comply.

A trial judge ruled in November that the president’s close advisers do not have the absolute immunity from testifying to Congress that the administration claimed. But the appeals court panel dismissed the case. It said it should have no role in the dispute, saying it would set a bad precedent for judges to wade into a dispute between the two other branches of government.

“The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often,” wrote Judge Thomas Griffith, an appointee of former President George W. Bush.

He was joined in the 2-1 ruling by Judge Karen LeCraft Henderson, an appointee of President George H.W. Bush.

Judge Judith Rogers, an appointee of President Bill Clinton, dissented. She said her colleagues’ opinion “all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties.”

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