Court Blocks Democrats’ Subpoena of White House Lawyer

Don McGahn was White House counsel in this 2018 photo. (AP Photo/Jacquelyn Martin)

WASHINGTON (CN) — House Democrats cannot use the courts to enforce subpoenas, the D.C. Circuit ruled Monday, dealing a critical blow to an investigation of President Donald Trump from the chamber.

Emphasizing that there is no statute on the books authorizing the House to seek court enforcement of subpoenas, the 2-1 ruling marks the second time the D.C. Circuit has let former White House counsel Don McGahn avert subpoena by the House Judiciary Committee. 

“When determining whether to ‘recognize any causes of action not expressly created by Congress,’ ‘our watchword is caution,’ and we should not ignore Congress’s carefully drafted limitations on its authority to sue to enforce a subpoena,” U.S. Circuit Judge Thomas Griffith wrote for the majority.

Democrats want McGahn to elaborate evidence that Trump worked to undermine the investigation of Russian meddling in the 2016 election.

While McGahn has refused to appear before the Democrat-controlled body, his testimony to special counsel Robert Mueller emerged as a critical feature of Mueller’s report.

The D.C. Circuit panel looked at the subpoena for the second time after the en banc ruled earlier this month that the House had standing, if not necessarily a cause of action, to issue subpoenas.

“Congress may someday determine that the federal courts should stand ready to enforce legislative subpoenas against executive-branch officials, but authorizing that remedy ourselves would be ‘incompatible with the democratic and self-deprecating judgment’ that we lack the ‘power to create remedies previously unknown to equity jurisprudence,’” wrote Griffith, who was appointed by President George W. Bush. 

House Speaker Nancy Pelosi called the decision by the panel, made up of two Republican appointees and one Democratic appointee, “wrong-headed” and “fundamentally at odds” with the en banc ruling earlier this month finding the House held Article III standing.

Pelosi said the House Judiciary Committee will immediately seek a new rehearing before the en banc court.

Monday’s ruling effectively grinds to a halt the ability of the House to seek out any information as part of an investigation that a party under scrutiny —  including the White House — does not wish investigators to see. 

The D.C. Circuit anchored its decision in part on the rules of Congress that give the Senate but not the House express cause of action in lawsuits to enforce subpoenas. 

But even in the case of the Senate’s power, the majority wrote Monday that the ability to sue to enforce subpoenas excludes cases involving executive-branch officials claiming governmental privilege.

“Again, ‘implied statutory limitations’ foreclose suits by the House and suits that implicate a governmental privilege; this one checks both boxes, so Congress itself has precluded us from granting the requested relief to the Committee,” Griffith wrote, with U.S. Circuit Judge Karen Henderson concurring.

The 9-page opinion emphasizes that it is not for the courts to change the rules.

“If Congress (rather than a single committee in a single chamber thereof) determines that its current mechanisms leave it unable to adequately enforce its subpoenas, it remains free to enact a statute that makes the House’s requests for information judicially enforceable,” Griffith wrote. 

Outnumbered by Republican appointees, U.S. Circuit Judge Judith Rogers argued in dissent there is an implied cause of action for the House under Article I of the Constitution. 

Rogers also found that McGahn’s claim of “absolute immunity” lacked merit. 

While the president’s communication with top-level officials are afforded some protection under the law, the Clinton appointee wrote the president does not have absolute and unreviewable discretion to determine which of his advisers answer to subpoenas. 

“Yet that is exactly the nature of McGahn’s absolute immunity claim,” the 12-page dissent states. “By asserting that he need not even appear in response to the Committee’s duly issued subpoena, he in essence contends that the President may unilaterally determine that no information will be disclosed in response to the subpoena. He thereby seeks to revive a view of Presidential power expressly rejected by the Supreme Court.”

But the majority faulted the House Democrats for failing to provide an example of the courts enforcing subpoenas to the executive branch prior to the Watergate-era, arguing there is nothing “traditional” about their claim. 

“The Committee’s smattering of examples from the 1970s comes (at least) thirty years too late,” Griffith wrote. 

The full court just weeks ago had rejected McGahn’s argument that the federal courts have not “historically entertained” congressional subpoena enforcement lawsuits, but also recognized the relative recency of such legal battles. 

“When determining the scope of our equitable authority, however, ‘relatively recent’ history isn’t enough,” Griffith wrote.

But Pelosi argued the opinion penned by Griffith defies Supreme Court precedent.  

“This unprecedented ruling again represents a direct challenge to our Constitution’s system of checks and balances and therefore to our very Democracy, particularly in light of this administration’s blanket defiance and obstruction of Congress’s constitutional legislative oversight authority,” Pelosi said in a statement. 

Joining that denunciation and affirming their plans to appeal, Democratic chairs of six House committees said Monday’s ruling was “clearly in error.”

“House committee chairs from both parties have previously and successfully relied on the courts to enforce subpoenas — to hold otherwise would undermine a critical constitutional check on the executive branch,” they said in a joint statement.

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