Full appeals court to rehear case over McGahn subpoena

A full federal appeals court bench will reconsider a Democratic bid for the testimony of former White House counsel Don McGahn, after a three-judge panel said he could defy a congressional subpoena. 

The D.C. Circuit Court of Appeals on Friday said a majority of judges had voted to vacate the panel’s ruling and hold a rehearing, which will take place April 28. 

The review by the full bench, a relatively rare procedural allowance, gives the Democratic-led House Judiciary Committee another chance to persuade the court to enforce its subpoena against McGahn, whom lawmakers consider an eyewitness to wrongdoing by Trump. 

It could also yield an important separation-of-powers precedent that redraws the line between congressional oversight and White House immunity.

Seven of the nine judges who will preside over the full court review were appointed by Democratic presidents. Two Republican-appointed judges were recused from the rehearing.

The Friday order vacated the three-judge panel’s 2-1 decision last month that McGahn could defy Democrats’ subpoenas. That ruling overturned a lower court judge who said McGahn was obligated to testify before Congress. 

The three-judge panel’s majority comprised two judges appointed by Republican presidents, while the lone dissent was cast by a Clinton appointee. 

In its Feb. 28 opinion, the majority ruled that courts were powerless to enforce the McGahn subpoena over Trump’s objection because it concerned a political dispute that was up to the White House and Congress to resolve. 

Had the ruling stood, it would have dealt a severe blow to Congress’s oversight authority and laid down a favorable precedent for future White House defiance.

The Friday order also said the full bench would hear a dispute over whether Democratic lawmakers have the legal right to sue to stop executive agencies from spending money to build a border wall. A lower court judge in that case, U.S. House of Representatives v. Mnuchin, said the lawmakers lacked the standing to sue.

The House Judiciary Committee subpoenaed McGahn in April, just days after the release of former special counsel Robert Mueller’s findings. The report concluded a nearly two-year investigation into Russia’s 2016 election interference, the Trump campaign’s contacts with Moscow and Trump’s possible obstruction of justice.

McGahn played a central role in the obstruction phase of the probe, which examined 10 “episodes” of possible obstruction by Trump. The report found “substantial evidence” that Trump leaned on McGahn to fire Mueller.

Mueller declined to say if Trump obstructed justice, but Attorney General William Barr and then-Deputy Attorney General Rod Rosenstein concluded Trump had not done so.

In addition to McGahn’s perspective on the obstruction investigation, House Democrats are also interested in his testimony related to Trump’s removal of both former national security adviser Michael Flynn and former FBI Director James Comey.