As Democrats push for documents and for witnesses blocked by the Trump administration in the impeachment inquiry to be made available for the Senate trial, House counsel Douglas Letter wrote in a filing on Monday that the House may need to impeach the president again if new evidence comes to light showing Trump engaged in impeachable behavior that was not covered in the two articles of impeachment passed last week.
Letter’s filing centers on the testimony of Don McGahn. The former White House counsel may be forced to testify before the impeachment inquiry if the D.C. circuit court upholds a November ruling determining the White House’s claim that McGahn has “absolute immunity” is invalid.
“If McGahn’s testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly — including, if necessary, by considering whether to recommend new articles of impeachment,” Letter wrote. On Monday, DOJ lawyers agreed in a brief that the articles of impeachment passed by the House do not cancel out the request for McGahn to testify — though they did argue that passing two articles of impeachment removes the urgency from the McGahn request.
Although McGahn resigned in October 2018, the former White House counsel’s testimony, if delivered, could change the contours of the process, opening up charges beyond just the Ukraine scandal. According to the Mueller report, McGahn did not comply with Trump’s request to fire the special counsel, effectively saving the president from a potential charge of obstruction of justice. But as the Daily Beast noted in November, “Few people actually read the Mueller report, of course, and if McGahn says in public, on national TV, what he apparently said to Mueller’s investigators, Trump’s public support could drop substantially, and it could lock in an obstruction count.”
For the Senate and House, January 3 is the date to watch for impeachment. The case surrounding McGahn will be heard by a three-judge panel at the D.C. Circuit Court of Appeals that Friday, which is also the day the House will return to barter over the terms of the impeachment trial before sending the articles of impeachment to the Senate.