Appeals Court Grants Request to Rehear McGahn Case

Then-White House counsel Don McGahn listens to U.S. Supreme Court nominee Brett Kavanaugh testify before a Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington on Sept. 27, 2018. (Jim Bourg/Reuters)

A full federal appeals court on Oct. 15 granted a request to rehear former White House counsel Don McGahn’s subpoena case after a panel of judges dismissed the lawsuit.

The Democrat-led House Judiciary Committee in early September asked the full D.C. Court of Appeals to intervene in the case again, after a divided three-judge panel ruled the House can't look to federal courts to enforce its subpoenas, because there's no law that gives the chamber the power to do so.

The full panel in its order granted the request for the rehearing set for Feb. 23, 2021, and vacated the three-judge panel's August decision.

Both sides are required to submit briefs arguing the issues in the case, as well as address whether the case would become moot—whether there will still be live issues for the court to resolve—after the committee's subpoena expires at the conclusion of the 116th Congress.

The committee argued in their brief that the August decision had “hamstrung the House’s constitutional right to obtain information.” 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.

The full panel of the D.C. Court of Appeals had previously taken up the case, ruling 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.

That came after a three-judge panel ruled 2–1 in February that McGahn wasn't required to testify, agreeing with the Justice Department's (DOJ) argument that the Constitution bars federal courts from resolving disputes between the legislative and executive branches.

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 the August ruling, Judge Thomas Griffith wrote for the majority that the lawsuit had to be dismissed because the committee "lacks a cause of action to enforce its subpoena."

“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," Griffith wrote (pdf).