House asks appeals court to reconsider ruling saying Don McGahn doesn't have to testify

Last week's ruling, if it stands, could hamper Congress' long-term ability to investigate the executive branch and chills it from going to court especially during President Donald Trump's term, after Trump pledged to block subpoenas.

But the Democratic-led House now hopes the full DC Circuit will to rehear the case and potentially override the split decision. An en banc rehearing would put the case before as many as 11 judges. The DC Circuit has more judges appointed by Democratic presidents than by Republicans.

It's rare for the DC Circuit to rehear a case, but this case has unusually significant implications for the constitutional separation of powers and its legal questions haven't fully been tested through appeals before. The case could ultimately end up before the Supreme Court.

Two of the judges on the DC Circuit were appointed by Trump and potentially could have to recuse themselves, because of McGahn's leadership role in the White House and that circuit judges Gregory Katsas and Neomi Rao worked in the White House before they received their nominations from Trump. Katsas was deputy White House counsel under McGahn in 2017 and 2018, while Rao worked in the Office of Management and Budget in 2017 through 2019.

House Democrats say the earlier 2-1 ruling may "upset" the balance of powers under the Constitution.

"The panel decision conflicts with D.C. Circuit precedent, prevents the House from carrying out its function as a check on the power of the Executive, and undermines Congress's authority to fulfill its Article I responsibilities," House lawyers said in court papers. "Present circumstances -- in which the President has announced broadscale defiance of Congress's oversight power -- underscore how dramatically this ruling could upset the constitutional balance of powers."

The House also raised, again, the specter of impeaching the President for obstruction of justice stemming from his reactions to the Russia investigation.

"If information comes to light about serious Presidential misconduct -- for example, if McGahn's testimony reveals that President Trump committed criminal obstruction of justice -- the Committee would have to consider whether to recommend new articles of impeachment," the House wrote.

At least one other early-stage case, where the House has sued the Treasury Department and IRS seeking Trump's federal tax returns, is in a holding pattern while the Circuit Court decides what to do.

"We very much have a moving ball over there on McGahn," District Judge Trevor McFadden noted during a hearing about the IRS lawsuit on Thursday.