The Justice Department is arguing that federal courts should not be making the decision to compel former White House counsel Don McGahn to comply with congressional subpoenas and force his testimony in any impeachment trial because of executive privilege.
In a filing with D.C. Court of Appeals, Justice Department attorneys said a decision on whether McGahn should comply with a congressional subpoena could impact the impeachment process, the Washington Times reported.
Earlier this year, Democrats on the House Judiciary Committee issued a subpoena to McGahn seeking to compel him to provide testimony during the panel’s impeachment inquiry.
They claim that McGahn has relevant testimony regarding whether President Donald Trump sought to obstruct Congress by trying to fire former special counsel Robert Mueller.
Critics of the subpoena note that intent is irrelevant, if it even exists, because Mueller was never fired and the president, as head of the Executive Branch, would have had the authority to do so anyway.
Democrats are also claiming that by instructing McGahn to ignore the subpoena, Trump is obstructing Congress, which is one of the two articles of impeachment returned against him last week.
Justice Department lawyers say the Judicial Branch weighing in on this issue would amount to a federal court weighing in on whether the president did obstruct Congress and, moreover, whether it was illegal.
“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.
A three-judge panel of the court is set to hear arguments Jan. 3.
Traditionally, the Judicial Branch has shied away from making rulings regarding disputes between the Legislative and Executive Branches, preferring to let the constitutional process of checks and balances play out.
The Justice Department said it would be inappropriate for a federal court to rule on an impeachment issue.
“Indeed, if this court were to now resolve the merits question in this case, it would appear to be weighing in on a contest 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.