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.
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.”
This was expected (by me anyway) but what was NOT expected was (1) they combined it with the House v Mnuchin case – where Judge Tervor “fluffing for the Don that appointed me” McFadden ruled that the house did not have standing to challenge Trump’s reallocation of funding to the Border wall.
Vote is not listed, but it was of interest that both Rao and Katsas (the two trump judges on the DC Cir) did not participate. That is really odd, perhaps both recused themselves. Usually if someone disagrees, they dissent from rehearing. Henderson and Griffith (who wrote the McGhan) opinion did not note a dissent.
They also set it for argument on April 28, 2020 which is warp speed for the appellate Courts.
The original opinion (written by Henderson and Griffiths) has gotten a lot of criticism, and en banc was almost a forgone conclusion, but the speed and including McFadden’s opinion into the en banc ways the DC Cir wants to clean this up quickly.
P.s. and the same Judge McFadden has been sitting for over a year on the House’s lawsuit for Trump’s taxes. I can’t but see this as a big shot across his bow in that case.
Of course they will. They know who they work for.
Will Trump and his minions Mnuchin and McGahn run to the SC (where they have Roy Kohns) if the U.S. Court of Appeals for the D.C. Circuit reverse the three-judge appellate panel decision?
Let’s not forget who ushered and prepped Kavbeernaugh to the SC…it’s none other than McGahn!
The bigger question is will the SC take the case. If they don’t, something could happen before he is booted from office. Otherwise, not so much. Right?
Will the courts exist?