Trump Scores Major Win In Fight Over House Subpoena Of Don McGahn

on February 22, 2018 in National Harbor, Maryland.
NATIONAL HARBOR, MD - FEBRUARY 22: White House Counsel Don McGahn speaks during CPAC 2018 February 22, 2018 in National Harbor, Maryland. The American Conservative Union hosted its annual Conservative Political Acti... NATIONAL HARBOR, MD - FEBRUARY 22: White House Counsel Don McGahn speaks during CPAC 2018 February 22, 2018 in National Harbor, Maryland. The American Conservative Union hosted its annual Conservative Political Action Conference to discuss conservative agenda. (Photo by Alex Wong/Getty Images) MORE LESS
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February 28, 2020 4:47 p.m.

A federal appeals court in D.C. gave President Trump a major legal win on Friday by refusing to enforce the House’s subpoena of former White House Counsel Don McGahn.

The majority opinion said that the court agreed with the Justice Department’s argument “that Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.”

Ruling in the Trump administration’s favor were Judges Thomas Griffith and Karen Henderson, both appointed to the U.S. Court of Appeals by President George W. Bush. Judge Judith Rogers, a Clinton appointee, dissented from the ruling.

Trump’s victory comes amid his unprecedented war against Congress’ oversight of his conduct. While so far he’s mostly lost in the courts, the slow pace of the judicial system has allowed him to stymie much of the Democratic-controlled House’s investigations into him. An appeal to the full D.C. Circuit Court of Appeals, which leans liberal, is likely, and the case could end up before the Supreme Court, which is already reviewing the House’s subpoena of Trump’s financial records.

The House’s effort to obtain McGahn’s testimony about Trump’s alleged obstruction of justice as laid out in special counsel Robert Mueller’s report dates back to April 2019. The House filed its lawsuit that summer.

A lower court rejected Trump’s claim in the case that McGahn had “absolute immunity” from testifying because he was a close presidential advisor.
But the appeals court said Friday that the courts lacked the power to make that call.

“The Committee’s suit asks us to settle a dispute that we have no authority to resolve,” the majority opinion, which came down at 5 p.m. on a Friday, said.

Though the court noted that the “the legal issue in this case is quite narrow,” the court worried about unending “judicial entanglements.”

“If the Committee can enforce this subpoena in the courts, chambers of Congress (and their duly authorized committees) can enforce any subpoena,” the court said.

The court speculated that if it had ordered McGahn to show up to testify, it would just prompt another legal battle over executive privilege.

“The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often,” the court said.

It pointed to other “tools” Congress has available to force compliance with its subpeonas, including withholding funding, blocking appointments or even impeachment.

(In the recent impeachment fight Trump’s lawyers argued that the Senate should not call witnesses because the House had failed to go to court to enforce the subpoena fight.)

“Congress can wield these political weapons without dragging judges into the fray,” the court said.

The majority said that courts had never settled cases like this before, asserting that cases like the Nixon case focused on court-authorized subpoenas, rather than congressionally issued ones. It also said this case was different than other congressional subpoena cases that were focused on an private citizen’s compliance, rather than an interbranch dispute.

The court later added that it was not endorsing the DOJ argument that Congress can never go to court to enforce a subpoena, only that it would not settle subpoena disputes between the branches of government.

In a blistering dissent, Rogers castigated the majority for all but assuring “future Presidential stonewalling of Congress.”

“The fact that the Supreme Court has not squarely addressed the question presented here is unsurprising, given the long history of Presidential cooperation with congressional investigations,” Rogers wrote.

The decision was also bashed by Constitutional Accountability Center President Elizabeth Wydra, who said in a statement that, if allowed to stand, the ruling “threatens to weaken Congress’s ability to perform its constitutional duty and its role in our tripartite governmental structure.”

The Justice Department said it was “extremely pleased with today’s historic ruling.”

“Suits like this one are without precedent in our Nation’s history and are inconsistent with the Constitution’s design,” DOJ spokeswoman Brianna Herlihy said. “The D.C. Circuit’s cogent opinion affirms this fundamental principle.”

Read the opinion below:

Josh Kovensky contributed reporting.

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