U.S. Court of Appeals for the District of Columbia Circuit hears Don McGahn appeal (updated)

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Two panels of the U.S. Court of Appeals for the District of Columbia Circuit heard back-to-back oral arguments today for the House of Representatives enforcing its subpoena for the testimony of former White House counsel Don McGahn, and obtaining the grand jury materials of Robert Mueller’s Special Counsel investigation.

Politico has an early report of what happened at today’s Don McGahn hearing. Judges spar with Democrats, DOJ in impeachment doubleheader:

Federal appeals court judges aggressively grilled lawyers for the Justice Department and the House of Representatives Friday in a pair of intertwined cases that could have a major impact on Donald Trump’s presidency and the Democrats’ ongoing efforts to remove him from office.

The judges were holding back-to-back hearings Friday morning on the House Judiciary Committee’s dual quests to learn special counsel Robert Mueller’s grand jury secrets and to secure testimony from Don McGahn, Trump’s former top White House lawyer. The two hearings were overseen by two partially overlapping, three-judge panels.

While the judges didn’t tip their hand on how they might be leaning, they did ask pointed questions of both sides. The two impeachment-related cases, being heard before the U.S. Court of Appeals for the District of Columbia Circuit, are on something of a fast track. It was the court’s first public business for 2020.

Each of the panels on Friday was composed of two Republican presidential appointees and one judge named by a Democrat. One of the GOP-appointed judges assigned to both cases, George W. Bush nominee Thomas Griffith, pressed the DOJ over whether Trump’s blanket refusal to cooperate with House impeachment probes was an unprecedented act of contempt for the legislative branch.

“Has there ever been an instance of such a broad-scale defiance of a congressional request for information in the history of the republic?” Griffith asked Justice Department attorney Hashim Mooppan.

Mooppan didn’t immediately offer a direct answer, but said there were “real dangers” in the court interjecting itself into the dispute.

Griffith brushed that aside. “What’s the answer to the question?” he pressed.

“I don’t want to fight with the premise to the question, but there is a lot of dispute about whether this is a wide-scale massive resistance,” Mooppan replied, adding that the Trump’s view may be that Congress has never acted as illegitimately as it has in the current impeachment process.

“The court should not be refereeing who’s right or wrong about whether the president is acting totally unusually or Congress is acting totally unusually,” Mooppan added.

WTF? This is exactly the role of the federal courts to referee such disputes. Otherwise there would never be a resolution to these disputes.

In United States v. Nixon, 418 U.S. 683 (1974), the president’s lawyers also asserted that the judiciary lacked authority to review the President’s assertion of executive privilege. The Court held unanimously:

Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e.g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr, 369 U.S. 186, 211. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 703-707.

Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No. 14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 707-713.

Politico continues:

Some of the Justice Department’s arguments in the cases seemed potentially awkward for the Trump administration.

As Mooppan sought to emphasize the other avenues the House could use to penalize the president for non-compliance with subpoenas, the DOJ lawyer acknowledged that impeachment was one such lever. But Mooppan declined to say whether the House’s decision to impeach Trump over obstruction of Congress was justified.

“It’s not that there are no remedies. There are political remedies. … The House has the power to block appropriations, to block legislation,” Mooppan said, noting also that the Senate could weigh in by holding up confirmations.

After Griffith chimed in with a suggestion about impeachment, Mooppan mostly dodged.

“I’m not going to get into, on any particular fact pattern, whether [that] would be appropriate or not,” the DOJ attorney said.

But Griffith also pressed the House’s attorney, Megan Barbero, about whether those other remedies were in fact sufficient to resolve the dispute without the courts getting involved.

“Cut the appropriations. Get the Senate to stop confirming judges. Make it an article of impeachment. You’re not without remedy here,” Griffith said.

“It is true that the House has other remedies available to it,” Barbero replied. “Those other remedies are not effective in obtaining a remedy for this specific injury of getting information in a timely fashion.”

The George W. Bush appointee repeatedly pressed Barbero about what would happen if the court sided with the House and the president simply invoked executive privilege to block McGahn from answering questions.

“We would expect to reopen the accommodations process,” Barbero responded.

But even a definitive ruling that McGahn must testify might not yield useful information for the House anytime soon. If the Justice Department’s arguments for absolute immunity for presidential advisers are rejected by the courts, litigation on a question-by-question basis is expected to follow.

That legal territory, which is even more uncharted than the threshold question of whether McGahn and similarly senior advisers can essentially ignore a subpoena, seemed to concern at least Griffith and fellow GOP appointee Karen Henderson.

“What happens next?” Griffith asked repeatedly during the 75-minute argument on the McGahn subpoena.

* * *

House Democrats are nonetheless antsy for quick decisions. They’ve already won both fights before federal district court judges in Washington, and House lawyers are urging the appellate panels hearing Friday’s arguments to reject the Trump-led Justice Department’s bids to have those earlier rulings tossed out.

In court briefs filed late last month, the Democrats pleaded for the chance to uncover incriminating material against Trump that could strengthen their hand during a Senate impeachment trial.

They’ve homed in on McGahn, who spent 30 hours meeting with Mueller’s team, and who they want to question under oath about what he witnessed in the White House as the special counsel probe bore in on the president’s behavior.

Convincing the judges that McGahn’s testimony or details from the Mueller report are critical to the impeachment articles will require some finesse since the pending charges against Trump focus on his dealings with Ukraine this past spring, half a year after McGahn quit his post and as Mueller’s probe was winding down.

Still, House lawyers argue that the testimony and records they’re demanding could buttress the impeachment drive by confirming Trump’s tendency to try to thwart investigators.

A win for the House could cause Trump headaches beyond the current impeachment showdown. The Democrats have said they haven’t foreclosed their option of passing additional articles to remove Trump if the judges were to order the release of evidence showcasing additional presidential crimes.

* * *

Rulings from the two D.C. Circuit court panels are unlikely to amount to the final say in the cases. The losers in either or both cases could ask the appeals court’s full, active bench — consisting of seven Democratic-appointed judges and four Republican appointees — to weigh in. That could lead to rulings that favor the Democratic-led House Judiciary Committee.

The DOJ has signaled it would go to the Supreme Court if it loses. Escalating either or both fights would set the stage for more possible precedent-shattering decisions on presidential power and Capitol Hill oversight. The justices have already agreed to hear arguments in March involving congressional and local criminal prosecutors’ subpoenas for Trump’s tax and financial records.

Friday’s D.C. Circuit arguments took place in the court’s regular fifth-floor courtroom. Four judges in all were involved. The McGahn case was listed first on the court’s schedule and featured Clinton nominee Judith Rogers working alongside Griffith and George H.W. Bush appointee Karen LeCraft Henderson. She’s not in the lineup for the Mueller grand jury case, where Rogers and Griffith were joined by Trump appointee Neomi Rao.

If the cases divide the three-judge panels hearing them, Griffith could turn out to be a swing vote.

I will update this post with reporting on the Mueller grand jury materials case when available.

UPDATE: Politico has updated its reporting:

The session about the House’s request for grand jury secrets in the Mueller report and underlying records stretched even longer, to more than an hour and a half.

Much of that time was spent addressing numerous queries from Judge Neomi Rao, a Trump appointee, about whether U.S. District Court Chief Judge Beryl Howell had the authority back in October to order the Justice Department to turn over the grand jury material to the House Judiciary Committee.

Rao seemed to accept that Howell could release the court’s veil of secrecy over the records, but she also suggested that forcing the executive branch to fork them over to Congress raised thornier questions.

That prompted Letter, the House counsel, to repeatedly raise the specter of Congress returning to use of force to enforce its subpoenas — [its inherent contempt power] — a practice not attempted for nearly a century. But as the House lawyer spoke of the potential for such confrontations leading to violence, it appeared he was highlighting the dangers of such an approach rather than seriously suggesting returning to the coercive methods employed until the 1930s.

“I guess what we would do is use the main remedy the House has had from the beginning, we’ll send the sergeant-at-arms over to the Justice Department. I cannot imagine anyone is going to interfere with him doing his duty as an officer of the House,” Letter said.

When pressed by Rao about what would happen if the Justice Department refused to comply, the House counsel added: “We can send the sergeant-at-arms and he can have a gun battle.”

Letter quickly said that it was “obvious” how such an effort could lead to chaos and why that practice was abandoned.

“Instead, we go to court,” said Letter, who in early 2018 ended a four-decade career as a senior Justice Department attorney.

Some of the heated exchanges on the subject seemed to have been triggered by Justice Department lawyer Mark Freeman’s statement to Rao earlier in the hearing that he’d have to ask his superiors what they would do if they were authorized, but not required, to turn over the grand jury secrets to Congress. Freeman added later that “as a career, line attorney” it wasn’t for him to predict what Attorney General William Barr would do.

However, Freeman did suggest that House lawyers were being cagey about whether additional impeachment articles against Trump were only theoretically possible or actually the subject of serious discussion by House leaders or the House Judiciary Committee.

“There’s a very carefully scripted language,” the DOJ lawyer said.

Judge Judith Rogers, a Clinton appointee, took a dim view of those arguments. “This is the counsel representing the committee on behalf of the House. This is not some casual remark,” Rogers said.

The Washington Post adds:

House General Counsel Douglas N. Letter said in court filings this month that lawmakers retain a “substantial and urgent interest” in the secret material and witness testimony as they make decisions about how to present evidence in a Senate trial, and to potentially bolster claims about presidential misconduct.

* * *

In the second case, the Justice Department is asking the D.C. Circuit to reverse a court order to disclose to the House certain grand jury evidence from Mueller’s investigation. Chief U.S. District Judge Beryl A. Howell in October ruled that the House was legally engaged in a judicial process that exempts Congress from secrecy rules that typically shield grand jury material.

Howell called “extreme” the Justice Department’s position that despite legal rulings during the impeachment inquiry into Richard M. Nixon, courts in 1974 should not have given Congress materials from the Watergate grand jury.

Justice Department lawyers told the appeals court there is no exception to secrecy rules for a Senate impeachment trial because it is not a “judicial proceeding.”

House lawyers, in response, said Congress cannot be barred from obtaining information it needs to decide whether to impeach the president and remove him from office. Specifically, the House is continuing to examine whether Trump lied about his knowledge of Russian interference in the 2016 election in written responses to questions from Mueller’s investigators.

With the Senate trial beginning as soon as this month, House lawyers said the appeals court’s quick review is “even more essential to prevent the Trump administration from obstructing Congress in its efforts to obtain the information it needs to carry out its constitutional responsibilities.”

The three-judge panel for the second case includes Judges Griffith, Rogers and Neomi Rao.