Appeals court again rules out House subpoena for McGahn


FILE – In this Sept. 27, 2018, file photo, then-White House counsel Don McGahn listens as Supreme court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington. The federal appeals court in Washington, is giving the House another shot at forcing McGahn to appear before Congress. Nine of the Democratic-dominated court’s 11 judges are hearing arguments by telephone Tuesday, April 28, 2020, in a dispute between House Democrats and President Donald Trump’s administration over a subpoena for McGahn’s testimony that was issued a year ago by a House committee. (Saul Loeb/Pool Photo via AP, File)

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WASHINGTON (AP) — A federal appeals court panel on Monday again threw out a lawsuit by House Democrats to compel former White House counsel Don McGahn to appear before a congressional committee.

In a 2-1 ruling, U.S. Court of Appeals for the District of Columbia Circuit held that the House of Representatives lacks the authority under the Constitution or federal law to ask courts to enforce a subpoena against an executive branch official.

The latest decision comes weeks after the full appeals court rejected the panel’s initial ruling that would have ended the court fight over whether McGahn must testify before the House Judiciary Committee as part of its investigation of potential obstruction of justice by President Donald Trump during special counsel Robert Mueller’s Russia investigation.

House Speaker Nancy Pelosi said the House would ask the full appeals court to step in and again revive the lawsuit.

Court cases over the testimony of presidential advisers are rare because the White House and Congress typically reach an agreement. But Trump directed McGahn not to appear and the Democratic-controlled House filed suit to enforce the subpoena that was first issued in April 2019.

With time running out on the current House session, which ends on Jan. 3, the prospect that McGahn would have to testify already was remote.

House lawmakers had sought McGahn’s testimony because he was a vital witness for Mueller, whose report detailed the president’s outrage over the investigation into Russian interference in the 2016 election and Trump’s efforts to curtail it.

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