En Banc DC Circuit Hears Separation-of-Powers Doubleheader

The full federal appeals court simultaneously heard arguments in two separate cases against the Trump administration.

A new section of a 30-foot-high wall is lifted into place near the border between the United States and Mexico on March 24, 2020. (Randy Hoeft/The Yuma Sun via AP, File)

WASHINGTON (CN) — In a pair of legal battles that could upend the balance of power in Washington, House Democrats on Tuesday urged the majority liberal D.C. Circuit to intervene in interbranch disputes with the Trump White House. 

The Justice Department first warned the court that it “will be revolutionized” if the nine-judge panel rules in favor of the House. With equal foreboding, Democrats said siding with the Trump administration would initiate “enormous change” in congressional oversight. 

The D.C. Circuit held the en banc hearing by teleconference in line with Covid-19 protocols. The court opted to hear the House lawsuits against the Trump administration in conjunction, based on underlying separation-of-power arguments in the two cases. 

The interbranch lawsuits center on the House subpoena to former White House counsel Don McGahn and the Trump administration reallocating military funds to build the president’s long-promised border wall. 

The court agreeing to rehear the cases signals its understanding of the heavy implications that hang in the balance. 

The White House has long argued in both cases that the Constitution does not allow the House to sue to enforce congressional authority over the executive branch. 

House attorney Megan Barbero argued that no one wants Congress to have to fall back on arresting “recalcitrant officials” who fail to respond to subpoenas, or shutting down the government to settle funding disputes. 

“The courthouse doors should not be uniquely closed to congressional plaintiffs after 50 years,” Barbero said. 

But the Justice Department sent the court a message that, while laden with statutory analysis and urbane vocabulary, rang loud and clear: Stay out. 

“Judicial intervention in this political tug of war risks damaging public confidence in the impartiality of this circuit,” Justice Department attorney Hashim Mooppan warned.

Falling back repeatedly on the argument that the separation of powers checks political ambition, Mooppan stressed that the House has “ample tools” like legislation and impeachment to carry out oversight.

With a Republican-controlled Senate, the first option sits beyond any possibility for redress. As for the latter, House attorney Douglas Letter had simple words to counter. “Been there, done that,” he said. 

As the majority Democrat-appointed panel grappled with the issue of absolute immunity for presidential advisers, U.S Circuit Judge Thomas Griffith, a George W. Bush appointee, questioned whether the court was dealing with an administration operating outside Washington norms.

“How is Congress to conduct its constitutional duty of oversight in the face of the type of utter disregard this administration has shown for that oversight?” Griffith asked. “Hasn’t this administration eschewed the traditional norms of compromise and negotiation that you rely upon in your argument so heavily?” 

When Mooppan denied the Trump administration had unilaterally defied subpoenas, Griffith shot back: “I’m sorry. I thought there was an across-the-board directive to not cooperate.”

Then-White House counsel Don McGahn listens at a Senate Judiciary Committee hearing on Sept. 27, 2018. (Saul Loeb/Pool Photo via AP, File)

During the impeachment probe, Mooppan countered, the president had directed executive branch officials to not comply with “categorically improper” subpoenas. Republicans had claimed the subpoenas were invalid because Democrats issued them prior to the House vote to launch the investigation into Trump’s alleged misconduct involving Ukraine. 

“But there was never a blanket edict,” the Justice Department attorney claimed. 

Carrying Griffith’s line of questioning, U.S. Circuit Judge Patricia Millett asked Mooppan to state his position clearly, once again. 

“You think the House can never come to court to enforce a subpoena, full stop?” the Barack Obama appointee asked. 

The Justice Department attorney replied in the affirmative. 

“The power to sue to enforce the law is invested in the executive, not the legislature,” he explained. 

Mooppan further pushed back on several judges posing a volley of hypotheticals on McGahn. That the president would be “brought to heel” by a federal court, the Justice Department attorney said, “it’s just not a realistic hypothetical.”

In a 2-1 ruling, the appellate court had handed President Donald Trump a soaring victory in February when it decided the Constitution forbids federal judges from resolving interbranch disputes between Congress and the White House. 

Democrats have long called McGahn the key witness to Trump’s alleged obstruction of former special counsel Robert Mueller’s probe into Russian interference in the 2016 election. 

But the House encapsulated its case for enforcing the White House subpoena in a simple plea Tuesday. 

“Congress needs information,” Barbero argued. “It is the lifeblood of Congress’ exercise of its Article I power.”

The McGahn subpoena, issued over a year ago, evolved into a lynchpin argument during the impeachment battle. Democrats pointed to the ongoing lawsuit as evidence that pursuing testimony from Trump administration officials who ignored subpoenas would play into the White House strategy to tie up the investigation in court. 

Letter recalled during Tuesday’s arguments that he sat many long hours in the Senate during the impeachment trial. The attorney flagged the incongruity in the Trump administration’s case in court compared to arguments made at trial that the White House could ignore subpoenas to senior advisers because they had not been litigated. 

“That is exactly, over and over again, what the president and his official government lawyers told the Senate of the United States: ‘Go to court and enforce those subpoenas,” Letter said.

Democrats first looked to the district court to enforce the McGahn subpoena in August, setting off a long-running legal battle expected to reach its apex before the Supreme Court, along with the border wall funding case heard Tuesday. 

The second interbranch dispute dates back to the end of 2018, when Congress and the president deadlocked on funding for a wall along the southern border and launched the longest government shutdown in U.S. history. 

The stalemate eventually broke in February 2019, when Trump signed the spending bill. But the president simultaneously declared a national emergency at the southern border and used that and other authority to bring the total his administration could spend on the wall to $8.1 billion. 

The House and Senate each voted to terminate the national emergency but failed to reach the margin needed to override a presidential veto.

The House soon faced defeat when it took the border funding battle to court, with a federal judge dismissing the case last summer based on lack of standing. 

The Justice Department argued Tuesday that the courts have traditionally steered clear of fights between the executive and legislative branches. Moopan said those branches have their own methods for hashing out political disagreements. 

“Whether they’re worth the political cost, whether Congress has enough political power to do it, those are features of the separation of powers,” the Justice Department attorney argued. “They are not bugs.”

U.S. Circuit Judge Merrick Garland posed one of many hypotheticals to Moopan Tuesday. 

Garland wondered whether the House could sue if the president ordered the Treasury Department to cover health care for all uninsured Americans after the defeat of a health care bill, or if Trump went forward with plans to distribute $1,000 checks each month until the end of the Covid-19 pandemic without congressional authorization. 

“That’s a significant power that the president has that can’t be checked by the Congress,” Garland said. Once a Supreme Court nominee, the Bill Clinton appointee appeared concerned over Congress’ inability to challenge presidential spending. 

But the House argued the Justice Department misinterpreted the appropriations clause.

“That so misunderstands an absolute key part of our Constitution and why the framers put that provision in as a result of their knowledge of the experience of the Glorious Revolution in England, the need to limit a monarch from just spending freely,” Letter said.

The House attorney argued government spending disputes are highly technical and the dustup over the border wall is unlikely to start a trend, downplaying Mooppan’s predictions of a wave of congressional lawsuits. 

U.S. Circuit Judge Cornelia Pillard raised concern that the House would be game to dig into such granular spending details. The Obama appointee noted a key difference in the cases is how courts have treated similar legal challenges in the past.

“Unlike the standing to enforce the subpoena, we don’t have 50 years of court cases assuming and or holding that this is something that we’re willing to adjudicate at the behest of a house of Congress,” Pillard said, referring to the border wall lawsuit.

Two D.C. Circuit Trump appointees did not participate in the three-hour oral arguments on Tuesday.

U.S. Circuit Judges Gregory Katsas and Neomi Rao both served in the White House before taking the bench, thereby linking any future testimony as former executive branch officials to a decision on the McGahn case. Seven Democratic-appointed judges sat on the en banc panel, along with two Republican appointees. 

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