The House Judiciary Committee has asked the full D.C. Circuit Court of Appeals to rehear its lawsuit against President Trump's former White House counsel Don McGahn, in an effort to compel his testimony. The committee's petition for an en banc hearing comes after a three-judge appeals court panel ordered the dismissal of the lawsuit, reversing a lower federal court's ruling last month.
House lawyers argue that the case is "of exceptional importance" and said the panel's 2-1 decision last month to dismiss their lawsuit conflicts with legal precedent. They countered the panel's reliance on a 1997 case that ruled six members of Congress lacked the standing to challenge the constitutionality of a statute by claiming that in this case, the lawsuit has been "brought by a House Committee with the Full House's backing."
The panel also said that the other tools the court indicated the Democratic-led House could use to check the president "are poor substitutes for judicial subpoena enforcement."
"Worse still," the filing reads, "the panel's decision permits the President to order defiance of the House's subpoenas on an absolute immunity theory," a theory that House Democrats say is meritless.
At stake in rehearing the case, they argue, is Congress's ability to enforce subpoenas in federal court.
The application leaves open the possibility future articles of impeachment against President Trump may be pursued, despite the Senate's vote last month to dismiss the two articles of impeachment against him.
"If information comes to light about serious Presidential misconduct—for example, if McGahn's testimony reveals that President Trump committed criminal obstruction of justice—the Committee would have to consider whether to recommend new articles of impeachment," the brief reads.
The House Judiciary Committee sued McGahn in August 2019 after the White House ordered him to not comply with a subpoena compelling him to testify about his knowledge of the president's conduct during the special counsel's investigation into Russia election interference.
U.S. District Judge Ketanji Brown ruled in the committee's favor, writing in his decision that "presidents are not kings" and as such, President Trump could not block the former White House counsel from testifying before Congress.
The Department of Justice, which represents McGahn in this case, appealed the lower court's ruling and convinced two out of three appellate court judges to order the lawsuit's dismissal on the basis that "the Constitution forbids federal courts from resolving this kind of interbranch information dispute."
Friday's petition now leaves the case in the hands of the entire D.C. Circuit Court of Appeals, which will decide whether it's necessary to rehear the case.
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