DC Circuit Holds That Congress Can Sue For McGahn Testimony

White House Counsel Don McGahn watches Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on September 27, 2018. (Photo by Saul Loeb-Pool/Getty Images)

The full U.S. Court of Appeals for the D.C. Circuit affirmed Friday that Congress could turn to the courts to get its subpoena of President Trump’s former White House Counsel Don McGahn enforced.

The circuit court roundly rejected McGahn’s arguments — previously adopted by a panel of three judges from the appeals court — that the judiciary should not get involved in these kinds of disputes between the legislative and executive  branches.

Friday’s decision — while an important victory for the House of Representatives — does not end the litigation over its McGahn subpoena. The full D.C. Circuit did not address the other claims McGahn brought to challenge the subpoena, and said it would leave it to the appellate panel to take another bite at those issues, now that the question of the courts’ authority in this arena had been resolved.

The case reflects what so far has been a successful strategy by President Trump and his administration to lob extreme arguments for why congressional subpoenas are not legitimate. Even when those arguments get rejected in court, as they largely have, the slow pace of the judicial process has allowed Trump to run down the clock before the 2020 election.

The D.C. Circuit said in this dispute that McGahn’s arguments were “unpersuasive,” while calling the administration’s widespread resistance to such subpoenas “apparently unprecedented.”

“By refusing to testify in response to the Committee’s concededly valid subpoena, McGahn has denied the Committee something to which it alleges it is entitled by law. And because the Committee has alleged the deprivation of testimony to which it is legally entitled, its asserted injury is concrete,” the court said.

It noted the fact that so few disputes like this had played out in courts, saying it was reflective of a tradition of accommodation in which both sides — feeling pressure to keep their fights out of court — are incentivized to coming to an agreement.

“Indeed, the threat of a subpoena enforcement lawsuit may be an essential tool in keeping the Executive Branch at the negotiating table,” the court said.
“Without that possibility, Presidents could direct widescale non-compliance with lawful inquiries by a House of Congress, secure in the knowledge that little can be done to enforce its subpoena — as President Trump did here,” the court added.

The D.C. Circuit referenced the Supreme Court’s recent decision in the Mazars case, where Trump, in his personal capacity, was trying to block a House subpoena issued to his financial firms for certain Trump records.

The appeals court noted that case dealt with different legal issues but, it said, the Supreme Court’s opinion had backed an idea of “constitutional power” that “entitles each House to the testimony of a witness and production of requested documents in response to a lawful subpoena.”

Read the ruling here:

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