Jan. 3 is lining up to be the Super Bowl of court dates in the House’s impeachment-driven battle to learn Robert Mueller’s secrets.
A three-judge federal appeals court panel announced Wednesday it will hear oral arguments on that date on the Justice Department’s quest to cloak former White House counsel Don McGahn with absolute immunity against having to testify in the ongoing inquiry into the impeachment of President Donald Trump.
The fast-track schedule creates a tag-team match of sorts for the D.C. Circuit Court of Appeals, since another key impeachment-related court fight — an attempt to obtain grand jury secrets in special counsel Mueller’s final report — was already scheduled to be heard on the same Friday just after the New Year.
The new order from the D.C. Circuit also reveals that two of the appeals judges already set to hear the grand-jury-related dispute — Clinton nominee Judith Rogers and George W. Bush appointee Thomas Griffith — will also take on the McGahn case.
The third judge looks set to swap out between the two cases. Judge Neomi Rao, a Trump appointee, is on the grand jury case, but George H.W. Bush appointee Karen LeCraft Henderson will replace Rao on the McGahn case, according to the order issued Wednesday.
The Democratic-led House won both cases in front of District Court judges, but is now trying to fend off efforts by the Justice Department to overturn those decisions. Both panels could be relatively friendly to the administration since Republican appointees outnumber Democratic judges, 2-1, even though the active bench of the court leans the other way, 7-4.
While the cases are moving at a rapid pace for the federal courts, it’s still not clear whether they will result in the House getting any of the information it is seeking before it votes on whether to advance articles of impeachment to the Senate. That could happen before Christmas, and House leaders have said they are not inclined to wait on the courts.
Sending the case against Trump to the Senate could also produce more legal wrangling over whether McGahn and others might be called as witnesses at a possible Senate trial of the president.
The suit the House filed in a bid to force McGahn to testify is seen as a potential bellwether for other Trump aides whose testimony has been sought in the impeachment process, although another former aide, former deputy national security adviser Charles Kupperman, is also seeking a court ruling on whether he must testify. House lawyers are arguing that case is moot because the subpoena to Kupperman was dropped.
The order from the D.C. Circuit on Wednesday evening did not formally address whether the appeals court will place a stay on Judge Ketanji Brown Jackson’s ruling rejecting McGahn’s absolute immunity claim so that the appeals court can dive into the legal merits of the dispute.
Jackson has yet to rule on the Justice Department’s request for stay pending appeal, although she did implement a seven-day freeze agreed to by the House, which says McGahn’s testimony is urgently needed because of the pending impeachment proceedings.
It seems likely, though, that Trump and McGahn will win an extension of the stay at least for the next month or so, since the just-scheduled January argument session would be of little importance if McGahn has already been required to appear.
Jackson’s ruling Monday did not foreclose the possibility that Trump could still claim executive or other privileges to block McGahn from answering specific questions. However, the Barack Obama appointee said completely excusing McGahn from testifying would give Trump or any president monarch-like powers that the framers of the Constitution deliberately sought to disperse in the system they devised.
“The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote.