Justice Department argues House panel is 'judge shopping' for favorable opinion to force Don McGahn's testimony
WASHINGTON — The Justice Department accused a House panel Tuesday of "judge shopping" in trying to get a favorable ruling to enforce its subpoena for Don McGahn, President Donald Trump's former White House counsel.
McGahn, a key figure in former special counsel Robert Mueller's report about Russian interference in the 2016 election, defied a subpoena in May from the House Judiciary Committee for his documents and testimony, under a request from the White House. The panel filed a lawsuit in U.S. District Court to enforce the subpoena.
When the panel filed the lawsuit Aug. 7, it argued that it belonged with the same judge who will decide whether to grant Congress access to grand-jury evidence in Mueller's report.
But Chief Judge Beryl Howell, who is hearing the grand-jury case, asked for arguments about whether she should also hear the McGahn case or assign it randomly to another judge, as is customary when cases are filed.
Douglas Letter, the House counsel representing the committee, argued that the same issues will be at stake in both cases because they both deal with evidence about whether to recommend Trump's impeachment, so it makes sense for the same judge to hear them.
"The factual overlap extends to the specific types of evidence the Judiciary Committee is amassing, as well as findings the court must make regarding the committee's need for that evidence," Letter said in a written argument Monday.
But the Justice Department replied Tuesday that the random assignment of cases is a fundamental part of the judicial process.
"Among other purposes, that general rule guarantees fair and equal distribution of cases, avoids the appearance of favoritism in assignments, and reduces opportunities for both the appearance and the reality of parties attempting to game the system by shopping for a judge they perceive as more favorable to their cause," a trio of department lawyers said in a written argument.
"In an attempt to circumvent the process," the committee sought to have the case designated as related to the grand-jury case, the department argued.
Howell set no deadline for deciding the issue.
The lawsuit is one of several legal challenges between Congress and the White House, as lawmakers seek to investigate Trump and his administration. The committee chairman, Rep. Jerry Nadler, D-N.Y., has said Trump potentially obstructed justice in trying to thwart Mueller's inquiry, as described in passages of the report involving McGahn. But Trump has argued the investigations are a partisan witch hunt with no justification.
McGahn defied the panel’s subpoena in May at the request of White House lawyers, who argued that presidential advisers have an absolute immunity from testifying before Congress. A U.S. District Court ruled in 2008 that presidential advisers weren’t entitled to absolute immunity, but the White House and Congress settled the case before an appeals decision was reached.
Nadler has dismissed absolute immunity as nonsense. Nadler has said that if the federal courts uphold the subpoena, it could open the door to information from other former White House aides.
The committee argued that the same judge should hear the grand-jury and McGahn cases because they deal with the same potentially obstructive acts by Trump. Both cases deal with whether Trump acted with "corrupt intent," according to the House filing.
"McGahn is therefore a critical link connecting the two cases," according to the filing. "His unique role as the most important witness to possible obstruction, and so his place in both the committee application and the complaint, reinforces the relatedness of the two matters."
But the Justice Department said the cases "could not be more different." The grand-jury case deals with rules of criminal procedure in cases, while the McGahn case is a civil enforcement matter, according to the argument.
"Yet the committee offers no reasoning or authority supporting the notion that any suit of any nature seeking information for the purpose of advancing a broad 'investigation' constitutes a related case," the department said in its filing. "These matters arose from different events and have different origins."
Trump allowed McGahn to meet with investigators for 30 hours during the nearly two-year inquiry. Trump now contends any documents McGahn could provide the committee are White House property and should remain confidential.
Democrats have focused on the 10 episodes of potential obstruction of justice detailed in Mueller's report, including efforts to fire the special counsel.
Trump called McGahn at home June 17, 2017, and told him Mueller had conflicts and should be removed, according to the Mueller report. Rather than carry out the order, McGahn decided that he would resign rather than trigger what he regarded as a potential Saturday Night Massacre, a reference to former President Richard Nixon firing prosecutors during the Watergate investigation. Trump later met with McGahn in the Oval Office and pressured him again, but McGahn refused.
McGahn later told Trump's chief of staff that the president had asked him to "do crazy s---," according to the report.
But White House lawyers have argued that the House can't compel McGahn's testimony because his communications must remain confidential as a top aide to the president.
The McGahn case represents the latest in a variety of legal challenges pending between Congress and the executive branch. The Judiciary Committee held Attorney General William Barr in contempt for refusing to provide an unredacted version of Mueller's report, and the full House found Barr and Commerce Secretary Wilbur Ross in contempt for refusing to provide documents about a citizenship question for the census.
Other House panels have won court rulings for access to Trump's personal financial documents, but the president has appealed those rulings. The Judiciary Committee filed a lawsuit on July 26 seeking access to grand-jury evidence supporting the Mueller report, which Barr blacked out in the version he provided Congress. And the panel continues to press Trump aides and associates with subpoenas.
More about legal clashes between Congress and the White House:
White House tells Don McGahn, former counsel, not to testify to House panel
President Donald Trump tees up the strangest test yet of executive privilege
This article originally appeared on USA TODAY: DOJ argues House panel 'judge shopping' to order Don McGahn testimony
