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House lawyers and Justice Department continue feud over McGahn testimony and Mueller material

Lawmakers spar over Senate trial rules

Although the House has already impeached President Trump, cases related to House Democrats' argument regarding his impeachment were at issue in a Washington, D.C., courtroom Friday, as attorneys representing the House Judiciary Committee faced off against the Justice Department in a pair of cases that stem from former special counsel Robert Mueller's investigation into Russian interference in the 2016 presidential election. 

The question facing the first panel of appellate judges is whether former White House counsel Don McGahn must testify before the committee about the president's conduct during the period of time covered by the Mueller investigation. McGahn has left it to the courts to decide whether the legislative branch or the executive branch has the final word on his testimony before Congress. The committee has issued a subpoena for his testimony, but the White House has demanded that he defy the subpoena, though he no longer works for the administration. 

The second panel is considering the House's request for grand jury information that formed part of the basis of the Mueller report. That information is currently under seal. 

The Justice Department, which opposed the House Judiciary Committee in both cases, and which is representing McGahn in the first case, appealed two lower-court decisions that ruled that the department must comply with congressional demands for McGhan's testimony and the grand jury information. 

Although the two cases heard Friday stem from the Mueller investigation, the House's impeachment of President Trump over the was the focus of the arguments, as judges and legal teams alike grappled, at times heatedly, with what impeachment means for the ongoing litigation. 

"There is nothing more important than determining whether the president of the United States should remain president of the United States," House general counsel Douglas Letter told the second panel.

Letter and his team argued that although their efforts to obtain McGahn's testimony and the grand jury material preceded the impeachment of President Trump, impeachment is the impetus for continuing the legal battle. 

"We remain here because of the impeachment," said House attorney Megan Barbero. 

The House legal team argued in court and in earlier court filings that the House's impeachment of Mr. Trump makes the need for both McGahn's testimony and the grand jury material more "urgent" because President Trump's alleged obstruction of Congress — the second article of impeachment — may extend as far back as the Mueller investigation, in which the grand jury material was essential and McGahn a key player. Although the president has already been impeached by the House, one reason House lawyers are continuing to pursue the cases is because these issues may arise during the Senate trial.

The panels in both cases also wondered whether the House lawyers were signalling that more articles of impeachment were coming. In response, Barbero and Letter reiterated what they have written in past court filings: if the new information "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." 

And when questioned further on this issue by Judge Thomas Griffith, a George W. Bush appointee, Letter added, "That is on the table. There is no doubt."

The Justice Department, acting in its capacity as McGahn's attorney in the first case, argued that the "interbranch dispute" over whether the former White House counsel should testify is no place for judicial interference or "amorphous supervision of the government," but for political negotiations and accommodation. 

"Congress has powerful, powerful tools to check the presidency," said Justice Department attorney Hashim Mooppan, and letting "unelected" and "unaccountable" judges pass judgment on what may or may not be considered evidence in the impeachment of the president could harm the reputation and power of the judiciary. 

Mooppan warned that the court would be in danger of being perceived as weighing in on the president's guilt "one way or another," something that he said has no historical precedent. But Griffith asked what Congress was to do in the face of historic "broad-scale defiance," questioning whether the Trump administration's refusal to comply with the congressional oversight requests might also be without historical precedent. 

Regardless of the political and judicial ramifications of a possible ruling against them, however, Mooppan and his colleague, Mark Freeman, reiterated a central point they made in briefs filed earlier in the two cases: "Neither article of impeachment adopted by the House…alleges high crimes or misdemeanors stemming from the events described in the Mueller Report," so McGahn's testimony and the grand jury material are unnecessary. 

The judges in each of Friday's cases gave no indication of when they would issue opinions in the matters but implied at the outset that they understood the need for an expedited schedule given House's impeachment of the president and the pending trial before the Senate. 

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