Appeals court deals blow to Democrats’ pursuit of McGahn testimony

Greg Nash

A federal appeals court in Washington on Monday dismissed a Democratic-led House committee lawsuit for the testimony of former White House counsel Don McGahn, finding the lawmakers lack legal grounds to enforce their subpoena in court.

The 2-1 ruling by a three-judge panel of the D.C. Circuit Court of Appeals was the latest setback for Democrats in their yearlong court battle over a subpoena issued to McGahn in April of last year.

The full D.C. Circuit ruled just three weeks ago in the case that the House has standing to sue to enforce its subpoena. But the panel ruled Monday that the lawmakers still lack a valid legal claim to make in court since Congress never authorized the House to bring such lawsuits.

“If Congress (rather than a single committee in a single chamber thereof) determines that its current mechanisms leave it unable to adequately enforce its subpoenas, it remains free to enact a statute that makes the House’s requests for information judicially enforceable,” Judge Thomas Griffith, who was appointed by former President George W. Bush, wrote in the majority decision.

The decision, which can be appealed, would make the House powerless to enforce its subpoenas in court.

Judge Judith Rogers, who was appointed by former President Clinton, dissented from the panel’s decision, arguing that the House committee has a legal claim to seek the enforcement of the subpoena and rejecting McGahn’s argument that he can refuse to comply with it.

“By asserting that he need not even appear in response to the Committee’s duly issued subpoena, he in essence contends that the President may unilaterally determine that no information will be disclosed in response to the subpoena. He thereby seeks to revive a view of Presidential power expressly rejected by the Supreme Court,” Rogers wrote.

The House Judiciary Committee has long sought McGahn’s testimony over President Trump’s possible obstruction of former special counsel Robert Mueller’s nearly two-year investigation into Russia’s 2016 election interference and the Trump campaign’s contacts with Moscow.

Speaker Nancy Pelosi (D-Calif.) said the House’s lawyers will ask the D.C. Circuit to rehear the case.
“If allowed to stand, this wrong-headed Court of Appeals panel ruling threatens to strike a grave blow to one of the most fundamental Constitutional roles of the Congress: to conduct oversight on behalf of the American people, including by issuing our lawful and legitimate subpoenas,” Pelosi said in a statement. “The ruling represents a flawed judicial attack on the entire House of Representatives; in the past, both Republicans and Democrats have successfully sought to enforce House subpoenas in court.

“This unprecedented ruling again represents a direct challenge to our Constitution’s system of checks and balances and therefore to our very Democracy, particularly in light of this Administration’s blanket defiance and obstruction of Congress’s constitutional legislative oversight authority,” the Speaker added.

The Democratic chairs of six House committees also denounced Monday’s decision.
“Today’s decision in the McGahn case is clearly in error,” they said in a joint statement. “House Committee Chairs from both parties have previously and successfully relied on the courts to enforce subpoenas — to hold otherwise would undermine a critical constitutional check on the executive branch. Just as the last decision of the panel was appealed and reversed, we expect to appeal this decision without delay to the full D.C. Circuit.”
The Trump administration has ordered McGahn to refuse to comply with the House subpoena and argued in court that the president and his close advisers have absolute immunity to such congressional investigative demands.

The Department of Justice, which is representing McGahn in the case, did not immediately respond when asked for comment.

Monday’s decision did not address Trump’s immunity claims.

The ruling comes a day after it was revealed that McGahn, as White House counsel, raised concerns about the security clearance of the president’s son-in-law and senior adviser, Jared Kushner, according to a forthcoming book.

Updated at 4:47 p.m.

Tags appeals court congressional subpoena Don McGahn Donald Trump Jared Kushner Mueller report Nancy Pelosi Robert Mueller Russia Investigation Subpoena Testimony White House Counsel

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