House Dems seek rehearing of McGahn ruling with full appeals court

The House Judiciary Committee on Friday asked the full U.S. Court of Appeals for the D.C. Circuit to rehear last week’s decision blocking former White House Counsel Don McGahn from testifying before Congress.

“The Committee’s petition argues that the panel’s ruling misread binding precedent and — if allowed to stand — would severely undermine the House’s ability to perform its constitutional functions as a check on the Executive Branch,” House Judiciary Chairman Jerrold Nadler, New York Democrat, said in a statement. “Now more than ever, the courts cannot abandon their responsibility to resolve these critical legal disputes.”

The Democratic-controlled panel said the ruling hamstrings its ability to investigate President Trump, conceding Mr. McGahn’s testimony could spark a second impeachment.

“[I]f information comes to light about serious Presidential misconduct — for example, if McGahn’s testimony reveals that President Trump committed criminal obstruction of justice — the Committee would have to consider whether to recommend new articles of impeachment,” lawyers for the committee wrote in the 118-page petition.

A three-judge panel last week said that the House doesn’t have the authority to ask judges to force executive branch employees to testify. The judges said in a 2-1 ruling that it is not their position to referee fights between Congress and the executive branch.

But House lawyers fired back Friday that the ruling leaves Congress with no choice but to exercise extreme options, including arrests, to compel answers to subpoenas.

“The House could direct its sergeant at arms to arrest current and former high-level executive branch officials for failing to respond to subpoenas, after which the legal issue dividing the branches would then be litigated through habeas actions,” the lawyers wrote. “But arrest and detention should be a prerequisite to obtaining judicial resolution of the enforceability of a congressional subpoena.”

Since the decision, the Justice Department has been citing it as evidence that White House staffers do not have to cooperate with the Democratic-lead investigations.