In a brief submitted to the D.C. Circuit Court of Appeals, the panel’s counsel Doug Letter argued its subpoena of McGahn, who departed the White House last year, is not moot despite the House’s approval of two impeachment articles — abuse of power and obstruction of Congress — in a partisan vote on Wednesday evening.
“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 reads.
The House Judiciary Committee, chaired by Rep. Jerry Nadler (D-NY), subpoenaed McGahn in March for its investigation into whether President Trump or senior White House officials obstructed justice during special counsel Robert Mueller’s probe into now-debunked collusion between the 2016 Trump campaign and Russia.
The Trump White House requested McGahn refuse to comply with the subpoena, citing “absolute immunity” that has long shielded top advisers from testifying before Congress.
Late last month, the D.C. Circuit Court of Appeals issued an administrative stay of previous ruling directing McGahn to testify. The court said it would consider granting a longer stay and scheduled a hearing for oral arguments on January 3.
In a ten-page filing, the Department of Justice argued the House’s impeachment vote “eliminate[d] the need” for McGahn to answer congressional questioning and “underscore the reasons why this Court should dismiss or deny the Committee’s suit without adjudicating the subpoena’s validity.”
“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,” DOJ lawyer wrote. “That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial.”