Don McGahn case: Trump administration says courts shouldn’t decide

The Trump administration and House Democrats again sparred over the testimony of former White House counsel Don McGahn in dueling court filings Monday.

Attorneys for the Justice Department, which is representing the administration, argued the court should stay out of the fight because any decision could be construed as interfering with the impeachment process.

Democrats on the House Judiciary Committee countered that they need to hear from Mr. McGahn quickly because President Trump is still under investigation and may face more articles of impeachment.

The arguments made to the U.S. Court of Appeals for D.C. Circuit show how contentious the fight to hear from Mr. McGahn has become.

Earlier this year, Democrats on the House Judiciary Committee subpoenaed Mr. McGahn, saying they want to hear from him about President Trump’s attempt to fire former special counsel Robert Mueller.

The committee contends Mr. Trump’s bid to remove the man who was investigating his campaign’s alleged ties to Russia amounts to obstruction of justice.

Although one of the articles of impeachment passed by the House last week is for obstruction of Congress, the president has not been impeached for obstruction of justice.

The panel now says they are preparing for a Senate impeachment trial as well as continuing with additional investigations into Mr. Trump.

“The committee’s investigations did not cease with the House’s recent impeachment vote,” the panel’s attorneys wrote in a filing.

However, the Justice Department urged the court not to become a referee in the impeachment fight.

“The now very real possibility of this court appearing to weigh in on an article of impeachment at a time when political tensions are at their highest levels — before, during or after a Senate trial regarding the removal of a President — puts in stark relief why this sort of interbranch dispute is not one that has ’traditionally thought to be capable of resolution through the judicial process,’ ” the department wrote.

Historically, the federal courts try to stay away from disputes between Congress and the executive branch. And the Justice Department said it would be inappropriate for the court to weigh in on this case because of the impeachment saga.

“Indeed, if this court were to now resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial. That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial,” the Justice Department wrote.

But Democrats say the impeachment battle is exactly why the court should weigh in. They say McGahn’s testimony would important to the House’s presentation of evidence in a Senate trial.

“If McGahn’s testimony 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,” the House wrote.

The D.C. Court of Appeals is scheduled to hear oral arguments from both sides on Jan. 3.