House asks appeals court to rehear McGahn case

The House Judiciary Committee asked a federal appeals court on Tuesday to rehear the case over its subpoena to former White House counsel Don McGahn after a panel of judges dismissed the lawsuit in a ruling that would essentially render the House’s subpoenas legally unenforceable.

The committee petitioned the full D.C. Circuit Court of Appeals to revisit the case, arguing that the decision from the three-judge panel “hamstrung the House’s constitutional right to obtain information.”

If the full circuit court chooses to take the case up, it will set up another round of litigation in a case that began more than a year ago.

The full D.C. Circuit has already taken the case up once, ruling in August that the House has standing to bring such a lawsuit, overturning an earlier decision from the three-judge panel.

But the panel dealt another blow to the House when the case was sent back, ruling just three weeks later that the lower chamber has no legal grounds to seek enforcement of their subpoenas by the courts.

Judge Thomas Griffith, who was appointed to the circuit by former President George W. Bush, wrote in the 2-1 majority opinion that Congress could simply pass a law giving itself legal cause of action to pursue such lawsuits.

“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.

The House subpoenaed McGahn in April of last year, seeking his testimony for an investigation following the release of the special counsel’s report on Russian meddling in the 2016 election.

President Trump ordered his former adviser not to comply with the subpoena, arguing that he and his close aides have absolute immunity from congressional investigative demands.

The panel’s latest decision last month did not address Trump’s claims of immunity, but the House on Tuesday asked the full D.C. court to address it and rule that “this theory has no place in our system of checks and balances.”

The Justice Department, which is representing McGahn in the case, did not immediately respond when asked for comment.