DC Circuit Tells Don McGahn To Shut Up And Sing
Today, the United States Court of Appeals for the DC Circuit ruled that the House Judiciary Committee can go to court to enforce its subpoena to former Trump White House counsel Don McGahn.
McGahn served as White House counsel from Trump's inauguration until he resigned in 2018. (McGahn we mean, not Trump. If you had "2018" in the "Trump resigns pool," you did not win any money.) In that time, Trump asked McGahn to do alllllll sorts of crimes. McGahn cooperated with Robert Mueller's investigation but, on Trump's command, refused to cooperate with Congress.
With the DC Circuit sitting en banc, Judge Judith Roberts wrote for the 7-2 majority what should have been clear all along: Of course Congress can subpoena executive officials. And Congress also has standing to go to court to enforce those subpoenas.
The Constitution charges Congress with certain responsibilities, including to legislate, to conduct oversight of the federal government, and, when necessary, to impeach and remove a President or other Executive Branch official from office. Possession of relevant information is an essential precondition to the effective discharge of all of those duties. Congress cannot intelligently legislate without identifying national problems in need of legislative solution and relying on testimony and data that provide a deeper understanding of those problems, their origins, and potential solutions. It likewise cannot conduct effective oversight of the federal government without detailed information about the operations of its departments and agencies. And it cannot undertake impeachment proceedings without knowing how the official in question has discharged his or her constitutional responsibilities.
Responding to McGahn's assertions that a ruling against him would allow Congress to "arrogate power to itself" and unilaterally take over the world or something, the court reminds McGahn that he is actually the problem here, not the House Judiciary Committee.
There is no congressional "arrogation" of power here and no threat that the court's decision will disrupt the historical practice of accommodation. To the contrary, permitting Congress to bring this lawsuit preserves the power of subpoena that the House of Representatives is already understood to possess. Rather, it is McGahn's challenge to the Committee's standing that seeks to alter the status quo ante and aggrandize the power of the Executive Branch at the expense of Congress.
The court ruled that the House Judiciary Committee was entitled to compel McGahn's testimony, saying,
by virtue of the House's long-recognized subpoena power, the Committee was entitled to McGahn's testimony pursuant to its duly issued subpoena, which he has never challenged, and the specific information the Committee would learn therefrom in connection with carrying out its constitutional duties. By defying the subpoena, McGahn has deprived the Committee of that testimony and that deprivation is a concrete injury.
This ruling is a long time coming. House Judiciary first subpoenaed McGahn in April of 2019 and filed this lawsuit almost exactly a year ago. In the meantime, it has bounced up and down between the DC Circuit and federal district court. Then in March, a three-judge panel of the DC Circuit was all like, "We can't decide this; what are we, JUDGES?!" and just pretended that it was completely absurd for a federal court to do something like enforce a subpoena (which, here in reality, our courts do every single day).
The en banc court disagrees.
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. Indeed, the ordinary and effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary.
If you're thinking all of this sounds familiar, House Judiciary v. McGahn isn't the only case dealing with these issues. Last month, the Supreme Court decided Trump v. Mazars, a similar case about whether Congress can subpoena the president's personal documents. SCOTUS's answer was basically, "Yes, but ..." The Court ruled against Trump's ridiculous claim that the president should be absolutely immune from congressional subpoenas but also came up with a balancing test for courts to use when deciding these kinds of cases. In reaching its ruling here, the DC Circuit relied on Trump v. Mazars to ultimately conclude that Congress has standing to pursue enforcement of its subpoena.
Ready for the kicker? None of this means McGahn is likely to actually testify any time soon.
The en banc court sent the case back to the ridiculous three-judge panel that got the case so terribly wrong the first time, to consider McGahn's other challenges to the subpoena. So first, we have to see if W. and H.W. Bush appointees Thomas Griffith and Karen Henderson find themselves able to follow the law this time around. (The third member of the panel, Clinton appointee Judith Rogers, dissented from the original opinion and wrote the majority opinion here.)
There is no set timeline for when the panel decision will be handed down, and since Judges Griffith and Henderson look like they want to do everything they can to give Trump cover at least until the election, I'm not holding my breath. And even if the panel manages to get things right this time around, the case will still have to go back to the district court for the subpoena to actually be enforced. Not to mention that McGahn will probably keep whining to try to get SCOTUS to step in and stay any ruling that's not in has favor — and the Roberts Court JUST LOVES granting stays to help the Trump regime get its way.
Still, today's opinion is a good one and a step in the right direction. It's important for our democracy that all of the branches are able to put checks on one another; without that, the entire system collapses in on itself, as we have seen start to happen since 2016.
So yay DC Circuit! Boo Don McGahn!
Here's the opinion:
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