House Committee Asks Appeals Court to Rehear Don McGahn Case

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
September 9, 2020Updated: September 9, 2020

The House Judiciary Committee has asked the full panel of a federal appeals court in the District of Columbia to rehear former White House counsel Don McGahn’s subpoena case after a panel of judges dismissed the lawsuit in a ruling that could effectively hamper the House’s ability to enforce subpoenas.

The committee asked the full D.C. Court of Appeals to intervene in the case again, arguing that the divided three-judge panel “hamstrung the House’s constitutional right to obtain information” in its Aug. 31 ruling.

The panel ruled 2-1 to dismiss the lawsuit brought by the House Judiciary Committee, saying that the House cannot look to federal courts to enforce its subpoenas because there is no law that gives the chamber the power to do so.

“Because the Committee lacks a cause of action to enforce its subpoena, this lawsuit must be dismissed,” Judge Thomas Griffith wrote for the majority (pdf). “We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit.”

That ruling created a barrier for lawmakers in the House committee, who have been seeking McGahn’s testimony since the spring of 2019 about his knowledge of alleged ties between the Trump presidential campaign and Russia.

Epoch Times Photo
Then-White House counsel Don McGahn in National Harbor, Md., on Feb. 22, 2018. (Alex Wong/Getty Images)

The full panel of the D.C. Court of Appeals had previously taken up the case, where it ruled 7-2 in August that the House has the right to bring suits, or standing, to enforce its subpoenas but also allowed McGahn to continue challenging the subpoena on other grounds.

“The Panel’s decision is déjà vu all over again. Start with its misreading of Supreme Court precedent. In the Panel’s view, Article I provides a Congressional power of inquiry, but no right to judicial enforcement,” the House legal team argued.

“But in Mazars, the Supreme Court confirmed as ‘an essential and appropriate auxiliary to the legislative function’ not just the ‘power of inquiry,’ but also the ‘process to enforce it,’” they continued, referring to another case, Trump v. Mazars USA, where the Supreme Court held that Congress had broad power to investigate the executive branch and the president and set forth a new standard for evaluating congressional subpoenas. The top court then remanded the case back to the lower courts to apply the new standard.

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.

The Justice Department did not immediately respond to The Epoch Times’ request for comment on the filing.