Appeals court rules House can’t sue to enforce McGahn subpoena

A federal appeals court ruled on Friday that the House cannot sue to enforce its subpoenas, delivering a win for President Trump in his battle against a congressional subpoena of former White House counsel Don McGahn.

A panel of three judges for the D.C. Circuit Court of Appeals ruled 2-1 to overturn a federal judge’s order that McGahn must comply with the subpoena, which was issued as part of Democrats’ impeachment inquiry into Trump.

The two judges on the panel who sided with Trump were both appointed by Republican presidents. A third, appointed by former President Clinton, dissented.

The ruling argued that the Constitution forbids federal courts from resolving disputes between branches, endorsing a view that had been pushed by the Trump administration that would insulate the White House from congressional oversight.

“If we order McGahn to testify, what happens next? McGahn, compelled to appear, asserts executive privilege in response to the Committee’s questions,” Judge Thomas Griffith wrote in the opinion. “The Committee finds those assertions baseless. In that case, the Committee assures us, it would come right back to court to make McGahn talk.

“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 added.

Neither the White House nor a spokesman for House Speaker Nancy Pelosi (D-Calif.) immediately responded when asked for comment.

If it stands, the ruling could essentially render congressional subpoenas of the executive branch unenforceable.

“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,” Judge Judith Rogers, a Clinton appointee, wrote in her dissent.

“Future Presidents may direct wide scale noncompliance with lawful Congressional inquiries, secure in the knowledge that Congress can do little to enforce a subpoena short of directing a Sergeant at Arms to physically arrest an Executive Branch officer,” Rogers added. “By encouraging Presidential stonewalling, the court effectively dismantles the accommodation process.”

The majority argued that Congress can use political tools to compel the executive branch to comply with its inquiries.

“Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees, harness public opinion, delay or derail the President’s legislative agenda, or impeach recalcitrant officers,” Griffith wrote.

The House Judiciary Committee sued McGahn last year after he refused to comply with a subpoena for his testimony in the impeachment investigation.

The Trump administration argued in court that the president has the power to assert blanket “absolute immunity” over White House aides in order to prevent them from complying with congressional subpoenas.

But District Court Judge Ketanji Brown Jackson, an Obama appointee, ruled that the House not only had standing to sue, but that the president did not have the authority to make such an expansive assertion of immunity of his aides.

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote in her opinion. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

In dismissing the House’s lawsuit on lack of standing, the panel did not rule on the merits of the Trump administration’s arguments about immunity. But Judge Karen Henderson, who was appointed by former President George H.W. Bush, wrote in a concurring opinion that she believes “McGahn’s claimed immunity rests on somewhat shaky legal ground” and chided the administration for refusing to accommodate congressional inquiries.

“Even setting aside the shaky foundation of testimonial immunity, a categorical refusal to participate in congressional inquiries strikes a resounding blow to the system of compromise and accommodation that has governed these fights since the republic began,” Henderson wrote. “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.”

The opinion in the McGahn case could have implications for other cases over congressional subpoenas of the Trump administration. A House Democratic lawsuit over their requests and subpoenas to the administration for President Trump’s tax returns had been delayed while the McGahn ruling was pending.

The administration and Trump’s personal lawyers have argued that the tax-return case should be dismissed because the federal courts can’t be forced to take a side in the dispute. But the House’s lawyers argue that the House does have standing to sue and that the case should move forward.

Minutes after the ruling in the McGahn case was issued, a hearing was scheduled for Thursday in the tax-return case on House Democrats’ motion to lift the stay on the case.

Naomi Jagoda contributed.

Updated at 6:22 p.m.