House Urges Full DC Circuit to Rehear McGahn Subpoena Fight

Then-White House counsel Don McGahn listens as Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee in September 2018. (Saul Loeb/Pool Photo via AP, File)

WASHINGTON (CN) —Asking the full D.C. Circuit to rehear a controversial case on immunity for presidential advisers, the House Judiciary Committee argued Friday that the court’s failure to enforce subpoenas leaves Congress with few remedies, among them arresting White House officials.

The House is asking for an en banc rehearing so the appeals court can reconsider a lawsuit to enforce a subpoena to former White House counsel Don McGahn.

A divided three-judge panel ruled last week that the court lacks jurisdiction to decide whether the same “absolute immunity” that shields President Donald Trump from testifying to Congress also protects his close advisers.

“Present circumstances—in which the President has announced broadscale defiance of Congress’s oversight power—underscore how dramatically this ruling could upset the constitutional balance of powers,” the House panel argued in the 118-page petition.

House lawyers seeking McGahn’s testimony as part of an ongoing investigation by Democrats into Trump’s alleged obstruction of justice called the 2-1 decision unprecedented.

Absent the judiciary enforcing a congressional subpoena, the House argued the handful of tools left at their disposal to compel White House advisers to testify — which the court’s majority pointed to as alternative methods of enforcement — are poor substitutes.

Calling on the House sergeant at arms to arrest “current and former high level Executive Branch officials” for failing to testify when subpoenaed would land the same interbranch dispute in court on a habeas corpus lawsuit.

“But arrest and detention should not be a prerequisite to obtaining judicial resolution of the enforceability of a Congressional subpoena,” the House argued.

Other forms of enforcing McGahn’s subpoena include using appropriations power to trigger a government shutdown, and impeachment. But House lawyers reminded the court it already acted on its sole power to impeach the president as a remedy for obstruction.

“But the panel did not acknowledge that, while this case was pending, President Trump’s White House Counsel argued to the Senate that the President could not be impeached for obstruction of Congress because the House had not first sought judicial enforcement of its subpoenas—a route that the panel has now held would have been futile, at the urging of President Trump’s DOJ,” the House argued.

In a footnote, the House makes known that it could bring forward new articles of impeachment in the future if McGahn is ordered to testify and brings to light new information on Trump obstructing justice during former special counsel Robert Mueller’s investigation.

Arguing the D.C. Circuit decision conflicts with the appellate court and Supreme Court precedent, the House leans heavily on a 1976 D.C. Circuit ruling that upheld standing for a House subcommittee to intervene in a Justice Department lawsuit to block AT&T from complying with a House-issued subpoena.

Warning that blocking the McGahn subpoena cripples Congress’ power to conduct executive oversight, the lawyers note that the district court relied on the landmark AT&T ruling when it ordered McGahn to testify last year.

While sending the McGahn case back to the lower court to be dismissed, two of the three judges on the panel made clear that it is unlikely the White House would prevail on the merits of its claim to “absolute testimonial immunity.”

The only Democrat-appointed judge on the panel, U.S. Circuit Judge Judith Rogers, also stressed that the AT&T ruling provides precedent for the House Judiciary Committee’s current standing.

Dissenting from the “extraordinary conclusion” of the majority, Rogers concluded the House had “appropriately sought judicial enforcement of its subpoena of McGahn in the face of the unprecedented degree of Presidential non-cooperation.”

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