DOJ tells court McGahn subpoena is moot after impeachment vote

The Trump administration told a court on Thursday that the House subpoena ordering former White House counsel Don McGahn to testify in the impeachment inquiry "appears to be moot" now that the president has been impeached.

The Department of Justice submitted a brief with the D.C. Circuit Court of Appeals arguing that the House Judiciary Committee overstepped its authority by seeking a court order to compel McGahn to testify and that it plans to take the fight to the Supreme Court if it loses on appeal.

"Although the judgment instead should be reversed and the case dismissed, if the Court were to disagree, it should at least leave the stay in place for a reasonable period to allow the Solicitor General to seek appropriate relief from the Supreme Court, especially given the serious question whether McGahn’s testimony is even relevant to the now-passed articles of impeachment," the DOJ wrote in a footnote to the brief.

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Two panels of D.C. Circuit judges will hear arguments early next month over the House Judiciary Committee's subpoena battles with the Justice Department in the McGahn case as well as in a dispute over redacted material from former special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE's report.

After the House passed two articles of impeachment against President TrumpDonald TrumpHillicon Valley — Presented by Xerox — Twitter's algorithm boosts right-leaning content, internal study finds Ohio Democrat calls Vance an 'ass----' over Baldwin tweet Matt Taibbi says Trump's rhetoric caused public perception of US intelligence services to shift MORE Wednesday night, the two D.C. Circuit panels immediately ordered the parties in both cases to brief them next week on whether the subpoenas are moot, now that the impeachment process in the House is over.

The Justice Department also added that the House committee lacks legal standing to bring the case and that the courts should not be used to resolve such disputes between the executive and legislative branches.

"A court should refrain from embroiling itself in an interbranch dispute without any imprimatur from Congress as a whole, particularly where the Committee’s primary asserted need for subpoenaing McGahn—his potential testimony related to an obstruction-of-justice impeachment charge ... appears to be moot," the department wrote.

A spokeswoman for the House Judiciary Committee did not immediately return a request for comment on whether it still plans to pursue the subpoenas.