Full Appeals Court Will Rehear Two Major Separation Of Powers Cases

WASHINGTON, DC - SEPTEMBER 27: White House counsel Donald McGahn at a Senate Judiciary Committee hearing on Thursday, September 27, 2018 on Capitol Hill. (Photo by Melina Mara-Pool/Getty Images)
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March 13, 2020 5:14 p.m.

The full U.S. Court of Appeals for the D.C. Circuit said Friday that it would rehear the House’s Don McGahn subpoena case — a sign that the full court is inclined to reverse the ruling by a panel of judges on the court that stood to severely hamper congressional oversight of the Trump administration.

The three-judge appellate panel ruled last month that the courts did not have the authority to decide subpoena disputes between Congress and the executive branch. Friday’s order set aside that decision.

The full court of appeals announced that it was rehearing that case alongside a separate appeal in a case the House brought against Treasury Secretary Steven Mnuchin over the administration’s efforts to fund President Trump’s border wall.

Both cases have to do with the issue of whether the House has the standing to go to court to settle such disputes.

“A vote was taken and a majority of the judges eligible to participate voted to rehear McGahn and Mnuchin en banc,” the order Friday said. (En banc is the term for when a full appeals court reviews the decision of a three-judge panel).

Circuit Judges Gregory Katsas and Naomi Rao, who both previously worked in the Trump administration, did not participate in those matters, the order said.

The court will hold oral arguments in the cases on April 28, 2020, according to the order.

Both cases bring up major separation of power issues that have implications for the current administration and for Presidents in the future. The McGahn case deals with the ability of Congress to enforce its own subpoena to conduct oversight of the administration. The Trump administration’s efforts to prevent McGahn from testifying was part of a larger stonewalling strategy that has protected the President from congressional investigation.

The House brought the lawsuit seeking enforcement of its McGahn subpoena last summer, after McGahn refused to even show up for his deposition. The House was seeking McGahn’s testimony as part of its investigation into Trump’s alleged obstruction of justice as laid out in special counsel Robert Mueller’s report.
The Trump administration claimed that as former close advisor to the President, McGahn was shielded by an “absolute immunity” from being compelled by Congress to testify. A district court judge rejected that argument last year. However, when the administration appealed the case, the three-judge appellate panel reversed the district court’s order demanding he comply with the subpoena because the panel claimed it was not the court’s role to settle disputes over the sharing of information between government branches.

The House’s Mnuchin lawsuit arose from Trump’s emergency declaration last year to secure funding for a border wall, after Congress refused to authorize the spending. A district court judge ruled in Trump’s favor by concluding the House did not have the standing to bring the lawsuit, and a three judge-panel had heard arguments in the House’s appeal of the decision last month.

Friday’s order said that the appellate panel had requested a vote from the full appeals court on taking the case en banc “in light of the common issue of Article III standing presented in that case and McGahn.”

Read the order below:

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