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DOJ: Impeachment votes undercut House case for McGahn testimony

The Justice Department is arguing that the House’s votes last week to impeach President Donald Trump undercut lawmakers’ ongoing court case demanding testimony from former White House Counsel Don McGahn.

In a brief filed early Monday morning with a federal appeals court, DOJ lawyers acknowledge that the House’s approval of two articles of impeachment — focused on Trump’s alleged effort to withhold aid from Ukraine and his blockade of the House’s inquiry — do not render the legal fight over McGahn moot.

However, the Justice Department attorneys said the House Judiciary Committee’s decision to move forward with the impeachment vote means there’s no longer urgency to resolve the House’s case.

That bolsters the Trump administration’s argument that the courts should simply butt out of the legal showdown, the DOJ filing says.

“The reasons for refraining are even more compelling now that what the Committee asserted—whether rightly or wrongly—as the primary justification for its decision to sue no longer exists,” the DOJ lawyers wrote, without elaborating on that claim.

House lawyers indicated in advance of last week’s committee and floor votes that the panel planned to push on with its impeachment-related investigations. And Democratic lawmakers who led the House impeachment inquiry have long contended that their efforts to gather more evidence would continue, and that the timing of the impeachment vote reflected the urgency of the matter but not the conclusion of the effort to obtain witnesses and documents.
One open question is whether a Senate trial — whose contours remain unsettled — will involve attempts to seek testimony from witnesses who never appeared before any House panel. Senate Democratic leader Chuck Schumer, in particular, has requested testimony from acting White House Chief of Staff Mick Mulvaney and former national security adviser John Bolton.

Justice Department attorneys argued in their new submission that the looming prospect of a Senate trial is yet another reason for the judicial branch to stand aside.

“If this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial,” the DOJ legal team wrote. “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….’”
“This Court should decline the Committee’s request that it enter the fray and instead should dismiss this fraught suit between the political branches for lack of jurisdiction,” the Justice Department lawyers added.

The DOJ filing was one of several submissions expected Monday in response to requests the appeals court issued about an hour after the impeachment votes last week, seeking clarification of the impact of the votes on the McGahn case and a parallel legal fight for access to grand jury secrets in special counsel Robert Mueller’s report on Russian interference in the 2016 campaign.

Both those cases are expected to be heard on Jan. 3 by partially-overlapping three-judge panels. The Justice Department, which brought the cases to the appeals court, is not urging any delay of those arguments. However, the DOJ lawyers said the court shouldn’t rush to get a decision in the McGahn case out — potentially leaving a ruling until after the expected impeachment trial is complete.