Former White House counsel Don McGahn speaks during a discussion on “Constitutional Questions and Political Struggle: Congress’ Role in Oversight and National Security” December 12, 2019 at the NYU Global Academic Center in Washington, DC. McGahn spoke on the view from the executive branch perspective.

Alex Wong | Getty Images

A federal appeals court on Friday ruled that former White House counsel Donald McGahn does not have to comply with a subpoena seeking his testimony to the House Judiciary committee, saying the Constitution bars federal courts from acting as a referee in “this kind” of “information” dispute between the executive branch and Congress.

The committee was probing suspected efforts by President Donald Trump to obstruct former special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election.

Friday’s decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia overturned a ruling upholding the subpoena issed by a federal district court judge.

The Justice Department had argued against the subpoena on behalf of McGahn.

In their ruling, the appeals judges said the department had argued that “Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.”

“We agree and dismiss this case,” the ruling said.



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