Appeals Court Rules House Can Sue to Enforce Don McGahn Subpoena for Testimony

August 7, 2020 Updated: August 7, 2020

A federal appeals court on Friday upheld a congressional subpoena seeking former White House counsel Don McGahn’s testimony before Congress, ruling that the House has the right to bring suits to enforce its subpoenas.

Judges of the full D.C. Circuit Court of Appeals ruled 7–2 to overturn a divided panel opinion from February that found that the House lacked standing to seek judicial enforcement of the McGahn subpoena.

“The Committee, acting on behalf of the full House of Representatives, has shown that it suffers a concrete and particularized injury when denied the opportunity to obtain information necessary to the legislative, oversight, and impeachment functions of the House, and that its injury would be redressed by the order it seeks from the court. The separation of powers and historical practice objections presented here require no different result,” Judge Judith Rogers wrote in the majority opinion (pdf).

The ruling is a victory for Congress, who has been underscoring the importance of being able to enforce its subpoenas in order to carry out its legislative and oversight responsibilities. But the court also allowed McGahn to continue challenging the subpoena on other grounds. This effectively means McGahn would not have to testify while his case plays out in court.

The Justice Department (DOJ), who is representing McGahn in the case, said in a statement to The Epoch Times that they intend to “vigorously” challenge the subpoena on those other grounds.

“While we strongly disagree with the standing ruling in McGahn, the en banc court properly recognized that we have additional threshold grounds for dismissal of both cases, and we intend to vigorously press those arguments before the panels hearing those cases,” DOJ spokesperson Kerri Kupec said.

McGahn, who was viewed as a key witness in then-special counsel’s Robert Mueller’s Russia investigation, was subpoenaed by the committee in April 2019 to provide documents and appear before lawmakers as part of the investigation into alleged obstruction of justice by President Donald Trump—something that Mueller failed to establish in his investigation. Trump has denied any wrongdoing.

House Democrats have launched a slew of investigations, which included the subpoena of McGahn, in an effort to find information that could lead to the impeachment of the president.

The White House blocked his appearance in May, asserting executive privilege over the documents. This prompted House Democrats to subsequently sue McGahn in August 2019 in an attempt to enforce the subpoena.

In November that year, a district court judge ruled that McGahn must testify before the House, saying that executive branch officials are “not absolutely immune” from the compulsory congressional process, even if the president expressly directs the official’s non-compliance. That judge clarified that the injunction required McGahn to only appear before the committee, and not necessarily answer questions on the basis of recognized privileges. This prompted the Justice Department (DOJ) to appeal the decision to the circuit court.

The appeals court ruled 2-1 on Feb. 28 that McGahn was not required to testify, agreeing with the DOJ’s argument that the Constitution bars federal courts from resolving disputes between the legislative and executive branches. In March, the appeals court agreed to rehear the case before the full panel of the court and vacate the February ruling.

In the majority opinion, Rogers recognized the importance of Congress’s subpoena power, saying that the possession of relevant information is a necessary precondition for lawmakers to effectively discharge their duty.

“The power of each House of Congress to compel witnesses to appear before it to testify and to produce documentary evidence has a pedigree predating the Founding and has long been employed in Congress’s discharge of its primary constitutional responsibilities: legislating, conducting oversight of the federal government, and, when necessary, checking the President through the power of impeachment,” Rogers wrote.

She found that “McGahn’s disregard of the subpoena” had “deprived the committee of specific information sought in the exercise of its constitutional responsibilities.”

Rogers also rejected the DOJ’s argument that the federal court should not referee the dispute between Congress and the Trump administration.

“McGahn maintains that in exercising jurisdiction over the present lawsuit and resolving whether he is required to testify, the court takes sides in an interbranch dispute, aggrandizes Congress at the expense of the Executive, or otherwise disrupts the balance of powers between the Branches,” she wrote. “To the contrary, the judiciary, in exercising jurisdiction over the present lawsuit, does not arrogate any new power to itself at the expense of either of the other branches but rather plays its appropriate constitutional role.”

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) called the ruling a “profound victory for the rule of law and our constitutional system of government.”

“The court rejected President Trump’s sweeping claim that Committees of the House have no standing before the courts to seek redress of the institutional injury caused when lawfully issued subpoenas are ignored. Today’s decision confirms the Judiciary’s ability to resolve these disputes,” Nadler wrote in a statement.

House Speaker Nancy Pelosi also release a statement welcoming the appeal court decision. “Today’s en banc ruling is a victory for the rule of law and Congressional oversight.  The Court reaffirmed our Constitution’s system of checks and balances and rejected the President’s outrageous claim that Congress cannot enforce its subpoenas,” Pelosi said.

“The House will continue to pursue justice until Don McGahn and all Administration officials comply with our rightfully-issued subpoenas,” she added.

All seven judges in the majority were appointed by Democratic presidents, meanwhile, Judges Gregory G. Katsas and Neomi Rao, both appointed by Trump, did not participate in the case.

Judges Karen Henderson and Thomas B. Griffith, both appointed by former President George H. W. Bush, dissented in the case. Both judges argued in separate opinions that federal courts should not referee in disputes between Congress and the executive branch due to the issue of separation of powers.

“The court severs the standing analysis from its separation-of-powers roots and treats a direct dispute between the Legislative and Executive Branches as if it were any old case,” Griffith wrote in his dissent. “The result is an anemic Article III jurisprudence that flouts a long line of Supreme Court precedent, ignores the basic structure of the Constitution, and resuscitates long-discredited case law from this circuit.”

“The majority’s ruling will supplant negotiation with litigation, making it harder for Congress to secure the information it needs. And the Committee likely won’t even get what it wants in this case.”

He added that because the en banc court only ruled on a narrow issue of whether Congress had the right to sue, the other issues are left to be resolved by lower courts.

“Because the majority declines to decide whether the Committee has a cause of action and whether it should prevail on the merits, the chances that the Committee hears McGahn’s testimony anytime soon are vanishingly slim,” he wrote.

Story updated to include responses to ruling.

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