En Banc Court Rules House Can Subpoena Ex-White House Counsel McGahn

Then-White House counsel Don McGahn listens to a confirmation hearing for Supreme Court nominee Brett Kavanaugh before the Senate Judiciary Committee on Sept. 4, 2018. (AP Photo/Jacquelyn Martin)

WASHINGTON (CN) — Delivering a blow to the Trump administration, the full D.C. Circuit ruled Friday that the House Judiciary Committee can enforce its subpoena of former White House counsel Don McGahn.

Since as early as 1796, presidents have abided by congressional subpoena power, U.S. Circuit Judge Judith Rogers wrote in a 38-page opinion for the en banc appeals court. The Bill Clinton appointee noted America’s first leader, George Washington, “acknowledged that the House may compel the president to turn over some executive branch information if sought as part of an impeachment investigation.”

In a 7-2 decision, the court held that the Democrat-led House panel’s subpoena of McGahn is valid.

“In sum, by virtue of the House’s long-recognized subpoena power, the committee was entitled to McGahn’s testimony pursuant to its duly issued subpoena, which he has never challenged, and the specific information the committee would learn therefrom in connection with carrying out its constitutional duties,” Rogers wrote. “By defying the subpoena, McGahn has deprived the committee of that testimony and that deprivation is a concrete injury.”

The ruling comes after a tumultuous legal battle over McGahn’s testimony, with the White House announcing in May 2019 that he would not comply with the subpoena issued a month before by Judiciary Committee Chairman Jerry Nadler, a New York Democrat. The panel then sued last summer to enforce the subpoena.

In February, a three-judge panel of the D.C. Circuit ruled 2-1 that the Constitution forbids federal judges from getting involved in interbranch disputes over information. U.S. Circuit Judge Thomas Griffith, a George W. Bush appointee, warned judicial backing of either side would force the court to continue supervising the executive and legislative branches. The court agreed to hear the case en banc in March.

Rogers disagreed with the panel’s reasoning. She wrote that the judiciary’s adjudication of a matter involving a disagreement amongst legislative branches “does not arrogate any new power to itself at the expense of either of the branches,” but rather helps the court play its appropriate role.

“There is no congressional ‘arrogation’ of power here and no threat that the court’s decision will disrupt the historical practice of accommodation,” she wrote. “To the contrary, permitting Congress to bring this lawsuit preserves the power of subpoena that the House of Representatives is already understood to possess. Rather, it is McGahn’s challenge to the committee’s standing that seeks to alter the status quo ante and aggrandize the power of the executive branch at the expense of Congress.”

The majority opinion on several occasions cites a July decision from the U.S. Supreme Court that held a New York City prosecutor could subpoena President Donald Trump for his tax returns. Rogers noted the power of subpoena has often been the House’s only tool for oversight of the executive branch.

“Without that possibility, presidents could direct widescale non-compliance with lawful inquires by a House of Congress, secure in the knowledge that little can be done to enforce its subpoena — as President Trump did here,” Rogers wrote, referencing an October letter from White House counsel Pat Cipollone saying the administration wouldn’t cooperate with Democrats’ impeachment inquiry.

She added, “Traditional congressional oversight of the executive branch would be replaced by a system of voluntary presidential disclosures, potentially limiting Congress to learning only what the president wants it to learn.”

In a dissenting opinion Friday, U.S. Circuit Judge Karen Henderson, a George H. W. Bush appointee, wrote the majority’s decision “opens the door to future disputes between the political branches.”

Referencing the same Supreme Court decision over the president’s taxes, Henderson said the distinction between civil subpoenas and those against the executive are stark, as they pit political entities against one another.

“This distinction matters,” she wrote. “If the interbranch character of the dispute was of no consequence, any president could presumably challenge in court laws that he believes infringe upon Article II powers.”

Griffith, who wrote the three-judge panel’s opinion in favor of the Trump administration, also dissented from the majority. He said the court was being led to “an area where we do not belong and can do no good.” He wrote federal courts will now be forced to “referee an interminable series of interbranch disputes,” which politicizes the judiciary.

“And for what? Who benefits from today’s decision?” Griffith wrote. “Not Congress. The majority’s ruling will supplant negotiation with litigation, making it harder for Congress to secure the information it needs.”

He added, “And the committee likely won’t even get what it wants in this case. Because the majority declines to decide whether it should prevail on the merits, the chances that the committee hears McGahn’s testimony anytime soon are vanishingly slim.”

Nadler said in a statement Friday the court’s decision was a “profound victory for the rule of law and our constitutional system of government.”

“We look forward to the favorable resolution of the remaining issues before the DC Circuit in short order,” the committee chairman said. “In the meantime, today’s decision strikes a blow against the wall of impunity that President Trump has tried to build for himself. And it reaffirms the core principle behind the Supreme Court’s rulings last month: No one — not even the president — is above the law.”

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