Democrats want McGahn testimony, Mueller grand jury cases decided by same judge

Democrats want McGahn testimony, Mueller grand jury cases decided by same judge
© Greg Nash

House Democrats want the same judge to decide whether lawmakers can obtain materials from former special counsel Robert MuellerRobert (Bob) MuellerBarr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting MORE’s grand jury and testimony from ex-White House counsel Don McGahn, arguing both cases seek evidence related to possible impeachment of President TrumpDonald John TrumpAppeals court OKs White House diverting military funding to border wall construction Pentagon: Tentative meeting between spy agencies, Biden transition set for early next week Conservative policy director calls Section 230 repeal an 'existential threat' for tech MORE.

Democrats wrote in a nine-page legal brief filed Monday why they believe the two cases should be deemed related, saying “both seek key evidence for the Judiciary Committee’s investigation into whether to recommend articles of impeachment against President Donald J. Trump for potentially criminal obstructive conduct."


“The same underlying Committee investigation of the same Presidential misconduct is at the heart of both matters before this Court,” Democrats wrote in the filing submitted by House general counsel Douglas Letter. Democrats argued that “judicial economy” would therefore be served by having the same judge rule on both cases.

Labeling the cases related would mean both are eventually decided by Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia, who has already been assigned to the case involving the grand jury material. House Democrats and Justice Department officials agreed on a schedule for that case that would result in a decision sometime after Sept. 30.

Attorneys for the Justice Department opposed the Democrats’ efforts in a subsequent filing Tuesday on behalf of McGahn, arguing that the cases “could not be more different” and that the committee’s desire to quickly resolve the case “rings hollow” because of how long Democrats waited to file the suit for McGahn’s testimony. They asked the judge to reject the effort and allow the case to be randomly assigned.

“The Committee’s attempt to use the investigation as the common thread gets it backwards—rather than relating cases based on some shared underlying transaction that will be central to the adjudication of those suits, the Committee is trying to relate completely unrelated cases simply because it filed them in service of its overarching desire to bring various matters together in its investigation of the President,” Justice Department attorneys wrote.

The Judiciary Committee filed a civil suit to enforce the subpoena for McGahn’s testimony last week, arguing it is necessary for the House panel to decide whether to formally recommend articles of impeachment against Trump.

House Democrats have increasingly characterized the Judiciary panel’s investigation as one pursuing potential impeachment, and the latest filing reinforces that by describing the probe as an “impeachment investigation.”

The complaint filed in U.S. District Court in Washington, D.C., on Wednesday described McGahn as the “most important witness” — other than Trump himself – in its investigation into the potential episodes of obstruction of justice laid out in Mueller’s report.

House Democrats filed an application for the release of material from Mueller’s grand jury to the Judiciary committee in late July.

Monday’s filing similarly described McGahn as the witness best equipped to shed light on Trump’s intent with respect to possible episodes of obstruction of justice. It also labeled him a “critical link” connecting both cases, noting that the committee is seeking grand jury material that described actions taken by McGahn or could be used to question him during testimony.

McGahn was viewed as a key witness in Mueller’s investigation into possible obstruction; he testified before the grand jury and his testimony was cited extensively throughout Mueller’s 448-page report that was publicly released in April.

Judiciary Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerHouse passes sweeping reform bill to decriminalize marijuana This week: Congress races to wrap work for the year Top Republicans praise Trump's Flynn pardon MORE (D-N.Y.) said last week that the committee is engaging in “formal impeachment proceedings.” At the same time, Speaker Nancy PelosiNancy PelosiOn The Money: Unemployment gains lower than expected | Jobs report lights fire under coronavirus relief talks Hillicon Valley: Senate Intelligence Committee leaders warn of Chinese threats to national security | Biden says China must play by 'international norms' | House Democrats use Markup app for leadership contest voting Bipartisan governors call on Congress to pass coronavirus relief package MORE (D-Calif.) has resisted opening a formal impeachment inquiry, arguing that doing so would be premature and that the committees need to see their investigations play out.

The Judiciary panel subpoenaed McGahn to testify in May following the release of Mueller’s report. However, he resisted the appearance on instructions from Trump, who argued he is immune from compelled congressional testimony about his work in the White House.

The committee described Trump’s position regarding McGahn and immunity as having no basis in law.

McGahn’s lawyer William Burck said in a statement last week that his client would continue to comply with the White House’s order unless a judge strikes it down.

Howell, an Obama appointee, will ultimately need to rule on whether to satisfy Democrats' bid to designate the two cases as related.