WASHINGTON — Lawyers for House Democrats appeared in court Thursday to implore a judge to enforce a subpoena for testimony about “key events” relevant to Democrats’ impeachment investigation — but not the ones that might immediately come to mind.
There was no talk of Rudy Giuliani or Trump’s July call with the Ukrainian president. Instead, the judge heard how Democrats needed former White House counsel Don McGahn to testify about events that happened months or even years ago involving former officials with no apparent connection to the Ukraine-related inquiry: Remember former attorney general Jeff Sessions? Or former national security adviser Michael Flynn? Or former FBI director James Comey?
It wasn’t the only case related to former special counsel Robert Mueller’s long-finished investigation to recently come to a head in court. Just one week ago, another judge ruled that the Justice Department had to turn over previously undisclosed Mueller grand jury materials to House Democrats.
Mueller is having a moment. Thanks to how slowly cases can move through the courts, legal fights that came out of the special counsel’s investigation are just now being argued and could have bearing on the impeachment inquiry that is largely disconnected from his work. Mueller’s investigation into Russian interference in the 2016 election has little to do with whether Trump was involved in arranging a quid pro quo with Ukraine this year, which is what Democrats are focused on, but these cases raise core legal questions about Congress’s power to investigate the executive branch that have made them early proxy skirmishes in the larger impeachment war.
Other elements of the Mueller probe are having a strange second life now, too. During Trump’s July call with Ukrainian president Volodymyr Zelensky, the president’s fixation on undermining Mueller’s long-finished work reared its head. Before asking Zelensky for help investigating current political rival Joe Biden, he asked for the “favor” of digging up information about the origins of the Russia probe — Trump referenced “CrowdStrike” and a “server,” a nod to a conspiracy theory about the company hired by the Democratic National Committee to investigate its hacked servers during the 2016 election.
The momentum of Mueller’s politically explosive two-year investigation petered out in the months after his final report became public in April. Mueller made clear that he wasn’t exonerating Trump of allegations that the president tried to obstruct the Russia investigation — prosecutors found “substantial evidence” of potentially obstructive acts, according to the report — but declined to make a final “prosecutorial judgment.” There would be no new indictments, the Justice Department confirmed at the time.
Attorney General Bill Barr stepped into the void Mueller left, announcing that based on a review of the evidence collected by Mueller’s office, the record didn’t support a finding that Trump committed a crime. Notwithstanding Barr’s assessment, Democrats held up Mueller’s report as proof of wrongdoing by the president and said they would pick up the investigation where Mueller left off; Trump and his supporters, meanwhile, claimed victory.
Mueller ended up testifying before Congress but revealed little new information. The public’s appetite for Mueller-related news, which once appeared bottomless, seemed to wane — one man told BuzzFeed News after Mueller’s congressional appearance that he hadn’t been paying attention “because after almost two years of chasing after Donald Trump, and nothing coming out, I just don't watch the news."
Still, Democrats pressed ahead with some attempts at continuing Mueller’s investigation. That spurred the McGahn subpoena fight that was argued in court on Thursday. McGahn had participated in voluntary interviews with the special counsel’s office and was a central figure in the Mueller report, describing Trump’s expressed interest at times in removing Mueller and Sessions.
Democrats subpoenaed McGahn to appear for a hearing on May 21, but McGahn didn’t show up after the White House and the Justice Department claimed he was “absolutely immune” from being forced to testify. The House Judiciary Committee filed a lawsuit to enforce the subpoena in early August.
Then, news of the Ukraine call broke and everything shifted.
Democrats had previously tossed around the term “impeachment” this year in talking about the stakes of various investigations into the president, including the follow-up to the Mueller report. But Speaker Nancy Pelosi didn’t formally announce an impeachment inquiry until September, after news broke of Trump’s call with Zelensky. Congressional committees involved in that inquiry issued a flurry of subpoenas and requests for voluntary cooperation, just as two Mueller-related cases came up on the court docket.
A federal judge in Washington, DC, heard four hours of arguments on Thursday in the McGahn case. First, the Justice Department argued that the court lacked authority to get involved in this sort of fight between Congress and the White House over access to information and testimony. Second, the department argued that even if the court did get involved, it should find that McGahn — and all current and former senior presidential advisers — are completely immune from being forced to testify before Congress.
The Justice Department’s immunity argument has direct bearing on the impeachment inquiry going forward. One potential witness, Charles Kupperman, who briefly served as acting national security adviser to Trump this year, was directed by the White House to defy a House subpoena and has filed a lawsuit asking a judge to decide who is right, Democrats or the White House.
A week earlier, meanwhile, another federal judge in Washington had issued a 75-page opinion finding House Democrats were entitled to see otherwise secret grand jury materials prepared as part of Mueller’s investigation. There is no known grand jury activity at the moment related to Trump’s call with Zelensky and other communications between his administration and Ukraine, but the ruling from US District Chief Judge Beryl Howell included a boost to Democrats — the judge accepted that what Democrats were doing was “an official impeachment inquiry,” at a time when the White House and Republicans had denounced Democrats’ efforts as illegitimate and refused to cooperate.
Howell noted that although Pelosi had said Democrats would be focused on the more recent Ukraine communications, she also said that preexisting committee investigations into the president fell under the umbrella of the impeachment inquiry, too.
“The White House’s stated policy of non-cooperation with the impeachment inquiry weighs heavily in favor of disclosure,” Howell wrote. “Congress’s need to access grand jury material relevant to potential impeachable conduct by a President is heightened when the Executive Branch willfully obstructs channels for accessing other relevant evidence.”
The Justice Department immediately appealed Howell’s decision to the US Court of Appeals for the DC Circuit, and whoever loses the McGahn case is expected to take that case up to the DC Circuit as well.
The Mueller cases could even end up forcing a Supreme Court showdown on questions related to Congress’s investigative powers and the validity of the impeachment inquiry before any actual Ukraine-related legal fight — in court papers filed earlier this week, the Justice Department said it would ask the justices to step in if the DC Circuit refused to block disclosure of Mueller’s grand jury materials to Democrats.