DC Circuit Throws Out McGahn Subpoena Case

WASHINGTON (CN) – The D.C. Circuit handed President Donald Trump a decisive win Friday, ordering the dismissal of suit by House Democrats seeking to subpoena presidential advisers.

In a case centered on former White House counsel Don McGahn, the court ruled 2-1 that the Constitution forbids federal judges from resolving such interbranch information disputes.

Then-White House counsel Don McGahn at a Cabinet meeting in the White House in October 2018. (AP file photo/Evan Vucci)

Writing for the majority, U.S. Circuit Judge Thomas Griffith warned that enforcement of McGahn’s subpoena would force the court to continue supervising the executive and legislative branches.

“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,” Griffith wrote in the 37-page opinion.

Going up against her conservative colleagues, U.S. Circuit Judge Judith Rogers, the sole Democrat-appointed judge on the panel, penned a scathing dissent that warned of the blow the ruling dealt to the balance of power between the three branches of government.

But Griffith said the House Judiciary Committee and the White House, “locked in a bitter political showdown,” left the court in a constitutional bind when faced with enforcing a subpoena from a single congressional body to a top-ranking White House official.

“Judicial entanglement in the branches’ political affairs would not end here. If the Committee can enforce this subpoena in the courts, chambers of Congress (and their duly authorized committees) can enforce any subpoena,” the George W. Bush appointee wrote.

The judge further noted that the momentous legal issue is in fact “quite narrow,” as to whether the president can assert absolute testimonial immunity on behalf of his closest advisers.

“But future disagreements may be complicated and fact-intensive, and they will invariably put us in the ‘awkward position of evaluating the executive’s claims of confidentiality and autonomy,’” Griffith explained.

Still, Judge Rogers warned the decision would embolden future presidents to issue what she called Trump’s “blanket and unprecedented” order to executive branch officials to defy subpoenas to testify to Congress.

“The court removes any incentive for the executive branch to engage in the negotiation process seeking accommodation, all but assures future presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties,” the Bill Clinton appointee wrote.

Rogers dialed in on the House wielding the “sole power of impeachment,” reflecting the position of U.S. District Judge Ketanji Brown Jackson who firmly rejected the Justice Department claim that McGhan is shielded by the same executive privilege that protects Trump from testifying.

“Compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law,” the lower court judge wrote in a 120-page opinion last November.

The House filed suit to enforce the subpoena to McGahn in August 2019, months before launching into its investigation that culminated in two articles of impeachment charging Trump with abuse of power and obstruction of Congress.

During the months-long impeachment battle that gripped Washington, Democrats routinely pointed to the former White House counsel’s defiance of the subpoena issued in March 2019 as an example of the long legal battle that lawmakers would face if the House took each Trump official who failed to appear to testify to court.

But the D.C. Circuit concluded Friday that the separation of powers standoff was beyond their power to resolve, finding that if the courts take up every constitutional question, they could reach almost any proper conclusion to fit legislative debates.

“The separation of powers ‘could exist no longer, and the other departments would be swallowed up by the judiciary,’” Griffith warned. “Our government would become one not of laws, but of lawyers.”

Trump’s impeachment trial was the first in U.S. history to unfold on the floor of the Senate with no new witness testimony. Republicans killed a Democrat motion to subpoenas key witnesses like former national security adviser John Bolton before voting to acquit Trump last month.

Spurred by hindsight, Rogers picked up Jackson’s argument, adding that Trump fought the impeachment inquiry “with sweeping categorical resistance” by ordering executive branch officials not to cooperate with the Democrat-led House.

“In the context of impeachment, when the accuracy and thoroughness of the investigation may well determine whether the President remains in office, the House’s need for information is at its zenith,” she wrote.

Challenging the majority, Rogers argued that the House met the Supreme Court criterion to enforce its subpoena in federal court.

Speaking to his colleague’s dissent, Griffith challenged the argument that Congress cannot fend for itself because the House battled without the aid of political tools that require Senate cooperation, writing that: “A win for the Committee today may only hamstring Congress in the future.”

In a concurring opinion, U.S. Circuit Judge Karen Henderson, a George H. W. Bush appointee, further argued: “Political negotiations should be the first—and, it is hoped, only—recourse to resolve the competing and powerful interests of two coequal branches of government.”

But noting that her colleagues did not reach the merits of McGahn’s absolute-immunity claim – while at the same time concluding that the attorney was unlikely to prevail – Rogers argued the 1974 ruling in United States v. Nixon ordering President Richard Nixon to turn over Oval Office tapes amid the Watergate scandal would further foreclose arguments coming out of the Trump White House.

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