Appeals Court Rules Former White House Counsel Don McGahn May Be Subpoenaed By House Judiciary Comittee

Former White House Counsel Don McGahn may be subpoenaed by the House Judiciary Committee, the U.S. Court of Appeals for the D.C. Circuit ruled 7-2 on Friday.

The decision comes as a blow to President Donald Trump, who has worked to prevent McGahn from complying with the subpoena. However, the appeals court did not address legal arguments against subpoenaing McGahn, making unclear if or when he will be compelled to testify.

The Justice Department had argued that courts should not enforce House subpoenas of individuals from the Executive Branch, and argument that the D.C. Circuit strongly rejecting, noting the Supreme Court decision last month involving House subpoenas for the president’s financial records.

“To level the grave accusation that a President may have committed ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the House must be appropriately informed. And it cannot fully inform itself without the power to compel the testimony of those who possess relevant or necessary information,” D.C. Circuit Judge Judith Rogers wrote in the majority opinion.

The House sought testimony from McGahn in connection to former special counsel Robert Mueller‘s report on Russian interference in the 2016 election. McGahn had played a primary witness, telling investigators that Trump had worked to subvert the report and create false records regarding it.

However, the White House discouraged any of its employees, both past and present, to disregard any House subpoenas issued to them, a decision that the court called “unprecedented.”

“The apparently unprecedented categorical direction by President Trump that no member of the Executive Branch shall cooperate with the Committee’s impeachment investigation … likely explains the infrequency of subpoena enforcement lawsuits such as the present one,” Rogers wrote.

Although Trump was acquitted, some House lawmakers continued to push for McGahn’s testimony, though at this point, it is unclear if he could answer any questions prior to Nov. 3.

House Judiciary Chairman Jerry Nadler (D-New York) called the decision “a profound victory for the rule of law and our constitutional system of government.”

“We look forward to the favorable resolution of the remaining issues before the DC Circuit in short order. In the meantime, today’s decision strikes a blow against the wall of impunity that President Trump has tried to build for himself,” he said.

The case will now return to an earlier three-judge panel to consider arguments against the subpoena.