Former GOP lawmakers, officials ask court to enforce House subpoena on McGahn

A group of former Republican members of Congress and government officials are backing the House Judiciary Committee’s court battle to enforce a subpoena for former White House counsel Don McGahn to testify before Congress.

In a brief filed with the D.C. Circuit Court of Appeals on Monday, the group pushed back against the Trump administration’s claim that the president and his close advisers have absolute immunity from congressional subpoenas by pointing to examples of early fights between the legislative and executive branches.

“The idea that a president and his current and former advisors enjoy absolute immunity from subpoena—particularly during impeachment proceedings—finds no support in early American practice,” the group wrote.

“During the early republic, Congresses and presidents recognized that Congress had nearly untrammeled authority to request documents and testimony to support impeachment proceedings,” their filing reads. “Otherwise, as John Quincy Adams noted, it would make a ‘mockery’ of the Constitution’s impeachment power for Congress to have the power to impeach but ‘not the power to obtain the evidence and proofs on which their impeachment was based.’”

Among those who signed on to the brief are former Reps. Tom Coleman (R-Mo.), Bob Inglis (R-S.C.), Jim Leach (R-Iowa) and Reid Ribble (R-Wis.). Former acting Attorney General Stuart Gerson and George Conway, a Republican lawyer and the husband of White House counselor Kellyanne Conway, also signed on.

The Trump administration is appealing a district judge’s ruling that McGahn must comply with the House subpoena to testify as part of the chamber’s impeachment inquiry. In a scathing decision, Judge Ketanji Brown Jackson, an Obama appointee, wrote that the White House’s broad claims of “absolute immunity from compelled congressional process simply does not exist.”

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” she wrote.

In the filing submitted Monday, the group of Republicans endorsed her reasoning, arguing that U.S. history shows that the executive branch is subject to oversight from Congress.

“Early American practice reveals that the Framers viewed the Congress not only as a legislative body but also as one charged with constitutional duties of oversight deemed essential to preserving the separation of powers and guarding against tyranny,” they wrote. “Congress enjoys broad power to compel the production of evidence (testimonial or otherwise) from the Executive Branch—especially in cases of impeachment.”