In the background of the impeachment effort the House Judiciary Committee (HJC) led by Chairman Jerry Nadler was seeking: (1) Mueller grand jury material; (2) a deposition by former White House counsel Don McGahn; and less importantly (3) Trump financial and tax records. Each of these cases were then argued in federal court, appellate courts (6e and McGahn) and the supreme court (financials/taxes).
In November 2019 activist Federal District Court Judge Ketanji Brown Jackson ruled Don McGahn must appear before Congress; however, she also ruled McGahn retained the ability to “invoke executive privilege where appropriate” during his appearance.
The White House appealed the ruling to the DC appellate court on constitutional grounds. Today a three judge panel from the DC circuit agreed with the White House position.
WASHINGTON – President Donald Trump scored a major legal victory on Friday when a federal appeals court panel ruled Democrats have no right to hear testimony from former White House counsel Don McGahn.
The U.S. Court of Appeals for the District of Columbia Circuit’s ruling overturned a lower court decision requiring McGahn’s testimony and told the judge presiding over the case to dismiss it outright. The ruling is a blow to House Democrats’ attempts to break the Trump administration’s intransigent stance that it can block Congress from talking to witnesses. (link)
This ruling also undermines the ridiculous “obstruction” article of impeachment because it shows the White House had a justifiable and constitutional argument to make against the House in the judicial branch. The issue at stake was whether the legislative branch can penetrate the constitutional firewall which exists within the separation of powers.
After the November ruling, House Judiciary Committee counsel Doug Letter argued to the DC Appeals Court that the forced testimony of White House counsel Don McGahn was needed for evidence in their impeachment trial. [Court pdf Avail Here] The DC appeals court decision rebuked the House position that penetrating the constitutional firewall was adequately predicated:
The House Judiciary Committee could appeal for an en banc hearing of the full DC Appeals Court. We’ll have to wait and see if they do. However, it’s unlikely the HJC would succeed. The central issue is separation of power. DC Circuit spells out the deadline House Democrats for a rehearing before the entire DC Circuit is March 9th.