The House Judiciary Committee reportedly told the U.S. Court of Appeals for the District of Columbia Circuit on Monday that it still wanted former White House counsel Don McGahn to testify even though Trump has already been impeached, because his impeachment could reveal that Trump obstructed justice in the Russia investigation.
Democrats voted last Wednesday to impeach the president for “abuse of power” and “obstruction of Congress,” in claims related to his dealings with Ukraine. But the text of the articles of impeachment cited Trump’s alleged “previous invitations of foreign interference,” referring to debunked allegations that he sought to collude with Russia in the 2016 presidential campaign.
Democrats pursued McGahn’s testimony at the time the Mueller Report was released because they were determined to find any evidence that Trump obstructed justice, even though he had made every witness and document available to investigators and declined to exercise executive privilege. Mueller did not refer Trump for prosecution, nor did he “exonerate” the president, but both Attorney General William Barr and then-Deputy Attorney General Rod Rosenstein said that there was insufficient evidence to bring charges.
Nevertheless, Democrats continued to look for evidence of obstruction, even trying to obtain the grand jury materials that Mueller had used, which Barr was prohibited, by law, from providing to Congress (which found him in contempt anyway).
The White House, which had previously cooperated with Mueller, balked at allowing the president’s counsel to testify before Congress after the Mueller inquiry ended, citing legal privileges and constitutional boundaries.
But Democrats persisted.
In the Judiciary Committee’s report accompanying the articles of impeachment, which it cited in its court filing Monday, Democrats hinted that they included Trump’s so-called “obstruction of justice” in the Russia investigation in their “obstruction of Congress” article of impeachment, though they did not specifically charge him with obstructing justice (footnotes removed):
The Second Article of Impeachment impeaches President Trump for obstructing Congress with respect to the House impeachment inquiry relating to Ukraine. Yet, as noted in that Article, President Trump’s obstruction of that investigation is “consistent with [his] previous efforts to undermine United States Government investigations into foreign interference in United States elections.” An understanding of those previous efforts, and the pattern of misconduct they represent, sheds light on the particular conduct set forth in that Article as sufficient grounds for the impeachment of President Trump.
These previous efforts include, but are not limited to, President Trump’s endeavor to impede the Special Counsel’s investigation into Russian interference with the 2016 United States Presidential election, as well as President Trump’s sustained efforts to obstruct the Special Counsel after learning that he was under investigation for obstruction of justice.
However, a footnote at the end of the first paragraph above suggested that the committee would seek to interview McGahn to obtain evidence for use in a Senate trial on existing articles of impeachment, not new ones:
This Committee has undertaken an investigation relating to the Special Counsel’s report. That includes inquiring into President Trump’s obstruction of the Special Counsel, as well as a review of other aspects of the Special Counsel’s underlying work that the President obstructed. As part of this investigation, the Committee has sought to compel testimony by former White House Counsel Donald F. McGahn II, and to review certain grand jury materials relating to the Special Counsel’s report. Should the Committee obtain the information, it would be utilized, among other purposes, in a Senate trial on these articles of impeachment, if any. The Committee, moreover, has continued and will continue those investigations consistent with its own prior statements respecting their importance and purposes.
The DC Circuit is scheduled to hear the case on January 3. Speaker of the House Nancy Pelosi has refused to turn over the articles of impeachment to the Senate because she says she is awaiting a guarantee of a “fair trial” — though the Constitution suggests that the Senate could hold a trial anyway.
She may, however, also be awaiting the D.C. Circuit’s ruling on the McGahn case, which would almost certainly be appealed to the U.S. Supreme Court by either side.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.