According to court documents filed in the United States District Court for the District of Columbia on Tuesday, the DOJ believes the D.C. Court of Appeals decision on whether former White House counsel Don McGahn must comply with a subpoena to testify in the impeachment inquiry could play a critical role in the tax return case.
A lower court last week sided against the Department of Justice in ruling that McGahn must testify in the House’s impeachment inquiry. The D.C. Appeals Court has oral arguments set for next month.
“The Executive Branch disagrees with the McGahn decision and has filed a notice of appeal to the D.C. Circuit,” the DOJ wrote in its response to the Court. The DOJ said the U.S. District Judge Ketanji Brown Jackson’s McGahn decision “rejected several threshold arguments that Defendants and Defendant-Intervenors have also presented in [the tax return] case”:
These include the arguments (1) that suits by Congress against the Executive Branch seeking to enforce informational demands do not present a case or controversy under Article III; (2) that suits by Congress against the Executive Branch seeking to enforce informational demands do not fall within the jurisdictional grant of 28 U.S.C. § 1331; and (3) that there is not an implied cause of action under Article I for Congress to enforce its informational demands against the Executive Branch in federal court.
The DOJ asserted that the appeal in McGahn is likely to decide issues critical to their motion to dismiss the House Ways and Means Committee’s case for Trump’s tax returns.
“On November 27, 2019, the D.C. Circuit administratively stayed the district court’s McGahn decision and entered an expedited schedule pursuant to which oral argument will be held on January 3, 2020. Given the overlapping threshold questions in the McGahn litigation and this case, any decision by the D.C. Circuit in the McGahn case is likely to be highly relevant to this Court’s resolution of the pending motion to dismiss,” the filing concluded.
You can read the filing below.
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