Appeals court rules against Trump, says House can sue to enforce McGahn subpoena

A federal appeals court on Friday upheld the House’s subpoena of former White House counsel Don McGahn, ruling that Congress has the right to enforce its subpoenas in court.

The 7-2 decision from the full D.C. Circuit Court of Appeals reverses an earlier ruling from a divided three-judge panel that declared that congressional subpoenas were essentially unenforceable.

“The Constitution charges Congress with certain responsibilities, including to legislate, to conduct oversight of the federal government, and, when necessary, to impeach and remove a President or other Executive Branch official from office,” Judge Judith Rogers wrote in the majority opinion. “Possession of relevant information is an essential precondition to the effective discharge of all of those duties.”

Although the ruling is a clear victory for congressional Democrats, it does not mean that McGahn will be sitting for testimony anytime soon. The majority decision did not address the Trump administration’s claim that White House officials are immune to congressional subpoena, so even if McGahn does not appeal the ruling, the two sides will still have more to litigate before the D.C. Circuit.

Kerri Kupec, a spokeswoman for the Department of Justice, didn’t say whether the administration would appeal the ruling.

The circuit court on Friday also ruled that the House has standing to sue Trump over his diversion of Pentagon funds to border wall construction.

“While we strongly disagree with the standing ruling in McGahn, the en banc court properly recognized that we have additional threshold grounds for dismissal of both cases, and we intend to vigorously press those arguments before the panels hearing those cases,” Kupec said in a statement.

The House Judiciary Committee subpoenaed McGahn last year as part of an effort to follow up on the former special counsel’s investigation into Russian meddling in the 2016 election. That investigation eventually morphed into President Trump’s impeachment by the House and acquittal by the Senate.

Trump directed McGahn, his former legal adviser, not to comply with the subpoena, and the Department of Justice’s Office of Legal Counsel said the president and his inner circle were immune from congressional subpoenas.

The House sued in federal court to get the subpoena enforced and a district court judge sided against the president in November, ruling that the president and his close advisers have no such immunity from congressional subpoenas.

McGahn, represented by the Department of Justice, appealed the decision and a three-judge D.C. Circuit panel ruled 2-1 that the House had no standing to sue.

The House then asked the full D.C. Circuit to rehear the case, arguing that the panel’s decision would seriously damage Congress’s ability to conduct oversight of the executive branch.

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) applauded the ruling, saying that it “strikes a blow against the wall of impunity that President Trump has tried to build for himself.”

“Today’s decision is a profound victory for the rule of law and our constitutional system of government,” Nadler said in a statement. “The court rejected President Trump’s sweeping claim that Committees of the House have no standing before the courts to seek redress of the institutional injury caused when lawfully issued subpoenas are ignored. Today’s decision confirms the Judiciary’s ability to resolve these disputes.”

Speaker Nancy Pelosi (D-Calif.) also praised the ruling, calling it “a victory for the rule of law and Congressional oversight.”

“The Court reaffirmed our Constitution’s system of checks and balances and rejected the President’s outrageous claim that Congress cannot enforce its subpoenas,” she said. “The House will continue to pursue justice until Don McGahn and all Administration officials comply with our rightfully-issued subpoenas. We remain committed to our oversight responsibilities and to our nation’s fundamental principle that no one is above the law – not even the President.”

The ruling, which can be appealed to the Supreme Court, affirms that Congress has the power to investigate the president and his branch of government and holds that the authority is especially important during impeachment proceedings.

“To level the grave accusation that a President may have committed ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the House must be appropriately informed,” Rogers, who was appointed to the appeals court by former President Clinton, wrote in the opinion. “And it cannot fully inform itself without the power to compel the testimony of those who possess relevant or necessary information.”

All seven of the judges in the majority were appointed by Democratic presidents, and both dissenters were appointed by Republicans. Two judges, Gregory Katsas and Neomi Rao, both of whom were appointed by Trump and worked in his White House, recused themselves from the case.

The two judges who dissented — Thomas Griffith and Karen Henderson, both appointed by former President George H.W. Bush — argued in separate opinions that the courts should not be mediating disputes between Congress and the president.

“The majority’s decision will compel us to referee an interminable series of interbranch disputes, politicizing the Judiciary by repeatedly forcing us to take sides between the branches,” Griffith wrote. “I cannot join the court’s expedition into an area where we do not belong and can do no good.”

While Friday’s ruling comes months after the conclusion of the impeachment process, it’s a blow to the Trump administration, which has repeatedly argued in an unprecedented number of court battles between the two branches that Congress is limited in the ways it can fight back against the president.

The administration has had a mixed record in its legal battles against efforts to investigate the president. In a 7-2 ruling last month, the Supreme Court rejected Trump’s argument that he has absolute immunity concerning a grand jury subpoena for his tax returns issued by the district attorney in Manhattan.

But the same 7-2 majority also dealt a setback to congressional subpoenas for Trump’s financial records, ruling that the courts must carefully balance the interests of the two branches when faced with such disputes.

Though the high court ruled on the legal merits of those congressional subpoenas, it has yet to consider whether Congress actually has standing to enforce its investigative demands in the courts.

—Updated at 2 p.m.