- The Washington Times - Tuesday, April 28, 2020

The Trump administration on Tuesday urged a federal court to stay out of its fight with House Democrats who are again seeking to compel the testimony of former White House lawyer Don McGahn.

A full slate of judges on the U.S. Court of Appeals for the D.C. Circuit reheard the case after a panel of judges on the same court ruled 2-1 earlier this year that it did not have the authority to enforce a subpoena issued last year by the House Judiciary Committee.

In that decision, the majority said the Constitution bars the judiciary branch from refereeing disputes between the executive and legislative branches.

The House Judiciary Committee had subpoenaed Mr. McGahn last year. It has appealed the earlier decision in a second bid to compel his testimony, which they say is necessary for their investigations into President Trump.

On Tuesday, the Justice Department, which is representing the Trump administration, emphasized that argument before all 11 of the court’s judges, including nine who were appointed by Democrats.

Justice Department attorney Hashim Mooppan told the court that Democrats are making a “radical break” from tradition by involving the judiciary branch in its battles with the administration.

“Disputes between the political branches about their institutional prerogatives have occurred since the founding but lawsuits between them are a novel and unsanctioned tactic,” Mr. Mooppan said.

But an attorney for the House Judiciary Committee told the judges that the court was the only thing “keeping the executive branch from a monarchy.”

Doug Letter said the Trump administration has repeatedly thumbed its nose at Congress by telling it to go to court to enforce its subpoenas.

“And the president can ignore those subpoenas because you didn’t [enforce them],” he said.

Mr. Letter told the court that blocking congressional committees forces lawmakers to make key decisions without critical information.

He summed up the administration’s argument as “Congress should impeach without necessary information and should pass statutes without necessary information.”

“How can that possibly be the right answer?” he said.

Judge David Tatel, an appointee of President Clinton, asked Mr. Mooppan whether the fight he wants the court to dodge won’t just boomerang back to the court if the House arrests Mr. McGahn.

Mr. Mooppan maintained the courts would have to release Mr. McGahn and could do so without resolving the subpoena battle.

“That is beyond the scope of Congress’ power,” he said about the possibility of an arrest. “Congress doesn’t have the express authority to go around arresting people. There is simply no historical support for the notion that they can arrest an executive branch official for following executive branch directives.”

Judge Judith Rogers, another appointee of Mr. Clinton, asked if Congress had other options to enforce the subpoena.

Mr. Letter said it was not a good idea to prevent Congress from filing lawsuits to enforce subpoenas because it would result in arresting people who don’t comply with congressional orders.

Both sides presented their arguments by telephone conference because of the coronavirus crisis.

Mr. Trump last year ordered his former counsel not to comply with the subpoena, asserting his advisers have “absolute immunity” to congressional subpoenas.

Democrats insisted they needed Mr. McGahn’s testimony for Mr. Trump’s impeachment.

A district judge initially ruled in favor of the Democrats, saying the president’s immunity claims were “baseless.” The Justice Department appealed and won in the D.C. Circuit.

Democrats then petitioned the full circuit to hear the case.

The case is one of several fights between Congress and the administration over their investigations into Mr. Trump. The Supreme Court next month will hear oral arguments in a case that will decide if Mr. Trump must turn over his financial and tax records to Congress.

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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