The House plans to file a request Friday with the full U.S. Court of Appeals for the D.C. Circuit asking for it to review last week’s decision by a thee-judge panel of that court in the Don McGahn case. The decision severely hamstrung the House’s ability to force the Trump administration to comply with its subpoenas.
Specifically, the appellate panel refused to enforce the House’s subpoena of President Trump’s former White House counsel and said that courts have no authority to settle subpoena disputes between the legislative and executive branches.
Since the decision, the Justice Department has already started citing the ruling to seek the dismissal of separate cases dealing with House subpoenas.
The announcement that the House will appeal the McGahn decision on Friday — ahead a Monday deadline to do so — came in one such case, where the House is seeking a court order that the IRS comply with its subpoena of Trump’s tax returns.
The House lawyer’s remarks were reported by Courthouse News.
Attorney Josephine Morse said the House plans to file its petition for rehearing the McGahn case en banc at the D.C. Circuit by tomorrow, ahead of the Monday deadline.
— Megan Mineiro (@MMineiro_CNS) March 5, 2020
The tax returns case is not the only case where the Justice Department has looked to quickly exploit the appellate panel’s decision in Trump’s favor in the McGahn case.
The administration made a similar argument in a court filing submitted Monday to the judge overseeing a House lawsuit that he order administration compliance with subpoenas issued in the House’s probe of the census citizenship question.
Once the House files its appeal of the McGahn case, it could take months before the full D.C. Circuit can issue a ruling on the merits of the lawsuit. But the House could also ask the full court to stay last week’s decision. If successful, such a move won’t prevent other district courts from adopting the position of the appellate panel in the McGahn case, but district courts would not have to treat that decision as binding precedent while they waited for the entire appeals court to fully weigh in.
In the Trump tax returns case, the judge for now appears hesitant to move forward with those proceedings, given the plans for a McGahn appeal, according to Courthouse News.
U.S. District Judge Trevor McFadden was hesitant to move forward with the tax return case but ordered the House and DOJ to file a joint status report due next week.
“It feels like a moving target given you are also seeking a rehearing en banc.”
— Megan Mineiro (@MMineiro_CNS) March 5, 2020
