WASHINGTON — A federal appeals court in Washington on Friday revived House Democrats’ lawsuit to force former White House counsel Don McGahn to appear before a congressional committee, but left other legal issues unresolved with time growing short in the current Congress.

Don McGahn

House lawmakers have sought the testimony of former White House counsel Don McGahn, shown in 2018, because he was a vital witness for special counsel Robert Mueller, whose report detailed the president’s outrage over the investigation into Russian interference in the 2016 election and President Trump’s efforts to curtail it. Jacquelyn Martin/Associated Press

The full U.S. Court of Appeals for the District of Columbia Circuit voted 7-2 in ruling that the House Judiciary Committee can make its claims in court, reversing the judgment of a three-judge panel that would have ended the court fight.

The matter now returns to the panel for consideration of other legal issues. The current House of Representatives session ends on Jan. 3. That time crunch means “the chances that the Committee hears McGahn’s testimony anytime soon are vanishingly slim,” dissenting Judge Thomas Griffith wrote. Judge Karen LeCraft Henderson also dissented.

A separate case in which the House is suing to stop the Trump administration from spending billions of dollars that Congress didn’t authorize for the wall on the U.S.-Mexico border also was returned to a lower court.

Justice Department spokeswoman Kerri Kupec said the administration would continue to seek dismissal of both cases.

“While we strongly disagree with the standing ruling in McGahn, the en banc court properly recognized that we have additional threshold grounds for dismissal of both cases, and we intend to vigorously press those arguments before the panels hearing those cases,” Kupec said.


The administration could eventually appeal the outcomes to the Supreme Court, which last month rejected arguments by President Trump to invalidate other congressional subpoenas for his financial records.

Court cases over the testimony of presidential advisers are rare because the White House and Congress typically reach an agreement, and Friday’s ruling, if left undisturbed, could enhance congressional leverage in future disputes.

The Judiciary Committee first subpoenaed McGahn in April 2019 as it examined potential obstruction of justice by President Donald Trump during special counsel Robert Mueller’s Russia investigation. Trump directed McGahn not to appear and the Democratic-led panel filed a federal lawsuit to force McGahn to testify.

A trial judge ruled in November that the president’s close advisers do not have the absolute immunity from testifying to Congress that the administration claimed. Griffith and Henderson formed the majority when the appellate panel said in February that the Constitution forbids federal courts from refereeing this kind of dispute between the other two branches of government.

On Friday, the full court said the panel reached the wrong decision. Lawmakers can ask the courts “for judicial enforcement of congressional subpoenas when necessary,” Judge Judith Rogers wrote.

Congress needs detailed information about the executive branch for both oversight and impeachment, she wrote.


Ben Berwick, counsel for the nonpartisan Protect Democracy, said in a statement that “Trump’s attempts to ignore lawful congressional subpoenas threaten the checks and balances upon which our democratic system relies. No branch of government can stand above the law…Today’s decision is a repudiation of the President’s claims.” Protect Democracy had urged the appeals court to rule for the House.

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.

In interviews with Mueller’s team, McGahn described being called at home by the president on the night of June 17, 2017, and being directed to call the Justice Department and say Mueller had conflicts of interest and should be removed. McGahn declined the command, deciding he would resign rather than carry it out, the report said.

Once that episode became public in the news media, Mueller’s report said, the president demanded that McGahn dispute the news stories and asked him why he had told Mueller about it and why he had taken notes of their conversations. McGahn refused to back down.

If McGahn is ever to testify, it’s unclear his testimony would include any new revelations beyond what Mueller has already released. Mueller concluded that he could not exonerate Trump on obstruction of justice but also that there was insufficient evidence to prove a criminal conspiracy between Trump’s campaign and Russia.

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