A federal judge has rejected a request from House Democrats to have their court fights for testimony from ex-White House counsel Don McGahn and material from former special counsel Robert MuellerRobert (Bob) Swan MuellerTrump calls for probe of Obama book deal Democrats express private disappointment with Mueller testimony Kellyanne Conway: ‘I’d like to know’ if Mueller read his own report MORE’s report decided by the same judge.
Chief Judge Beryl Howell of the District of Columbia wrote in an 11-page opinion Wednesday that the connections between the two cases as presented by the House Judiciary Committee “are too superficial and attenuated” to meet the requirement for designating the cases as related, which would have allowed them to be decided by the same judge.
The decision marks a blow for House Democrats, who argued earlier this week that the cases should be deemed related because “both seek key evidence for the Judiciary Committee’s investigation into whether to recommend articles of impeachment against President Donald J. Trump for potentially criminal obstructive conduct.”
Justice Department attorneys representing McGahn opposed Democrats’ efforts, arguing that the cases are distinct and casting the committee’s desire to resolve the case quickly as unconvincing because of how long they waited to file the suit to enforce the subpoena for his testimony.
The case involving McGahn’s testimony was randomly assigned to Judge Ketanji Brown Jackson, an appointee of President Obama, later Wednesday. Howell already has been assigned to the case involving grand jury material underlying the Mueller report, and attorneys for House Democrats and the Justice Department have agreed on a schedule that will result in a decision sometime after Sept. 30.
“The judge had this discretion under the rule and we appreciate the rapid reassignment,” a Judiciary Committee spokeswoman told The Hill in a statement Wednesday. “We look forward to getting to the merits of our complaint.”
The Judiciary Committee filed an application in July to obtain the grand jury material underlying Mueller’s 448-page report, days after the former special counsel testified before Congress.
The panel filed the civil suit for McGahn’s testimony — which had been expected for several weeks — on Aug. 7.
Democrats have said both cases are central to the committee’s investigation into the episodes of potential obstruction by President TrumpDonald John TrumpWhy Republicans should think twice about increasing presidential power The opioid crisis is the challenge of this generation Flynn, Papadopoulos to speak at event preparing ‘social media warriors’ for ‘digital civil war’ MORE laid out in Mueller’s report. Lawyers for the House Democrats described the congressional probe as an “impeachment investigation” in a filing on Monday.
However, Howell, an appointee of President Obama, wrote in Wednesday’s opinion that the cases raise different legal issues: the grand jury case centers on deciding whether the committee’s application fits into an exception allowing for the release of secret grand jury material, which is not under consideration in the McGahn case. Therefore, designating them as related would be “wholly inappropriate,” she wrote.
Howell also wrote that the cases involve different sets and types of evidence — one involves the grand jury material, while the other involves testimony — and they present different “issues of fact” that need to be resolved.
“The principle behind the related case rule is that in certain instances, the strong presumption of random case assignment is outweighed by the interests of judicial efficiency in narrow circumstances, such as when virtually identical and highly overlapping issues of fact are likely to be resolved in two cases,” Howell wrote, adding that the Judiciary panel “has failed to meet its burden that departure from the practice of random case assignment is warranted.”
Updated at 1:22 p.m.