A group of former Justice Department officials is urging a federal appeals court to uphold a House subpoena for former White House counsel Don McGahn’s testimony in a case that could have far-reaching implications for Congress’s oversight powers.
The group filed an amicus brief with the D.C. Circuit Court of Appeals on Thursday, arguing that Congress has the power to enforce its subpoenas in court and rejecting the Trump administration’s claims that legislators have little legal recourse to investigate the executive branch.
The circuit court is set to rehear the case later this month after a three-judge panel had ruled that the House has no standing to bring legal action against the administration in court.
“That holding was wrong,” the former officials wrote. “Not only is the judiciary well equipped to answer a question about testimonial immunity, but prohibiting Congress from enforcing its subpoenas in court will effectively allow not only this Administration—but all future administrations—to avoid legitimate congressional oversight.”
The group consists of seven former DOJ officials who primarily served in Democratic administrations. But their filing is notable for the fact that most of them served in the DOJ’s Office of Legal Counsel, which is tasked with offering legal advice to the White House and is known for its expansive views of presidential authority.
When the House Judiciary Committee subpoenaed McGahn for his testimony last year, President Trump directed his former lawyer not to comply, arguing that his aides have complete immunity to congressional subpoenas.
In February, the circuit court panel ruled 2-1 against the committee, with two Republican-appointed judges carrying the majority. They decided that the Constitution prevents the courts from resolving disputes between the branches, a precedent that would render congressional oversight subpoenas legally unenforceable.
The decision was vacated by the D.C. Circuit, but it could offer a blueprint for the Supreme Court’s conservative justices if the case reaches the high court, which is also reviewing subpoenas for Trump’s personal financial records.
The former officials argued on Thursday that Trump’s position in the case is a departure from recent administrations’ view that Congress has standing to sue to enforce its subpoenas and from a tradition of presidents cooperating with congressional investigations throughout American history.
“Thus, early Presidents’ cooperation with congressional requests for information largely obviated any need for Congress to go to court, and the disputes that occasionally arose were marginal and occurred in a broader context of accommodation,” they wrote. “That history does not mean that the House cannot bring this action in response to this Administration’s unprecedented refusal to comply with the House’s subpoena.”
The circuit court will rehear arguments in the case on April 28.