President Trump was handed a legal victory as a federal appeals court ruled that former White House counsel Don McGahn does not have to comply with a congressional subpoena.
The 2-1 ruling has legal experts on the left up in arms as the U.S. Court of Appeals for the District of Columbia Circuit dealt a blow to House Democrats on Friday, deciding to dismiss the case amid concerns about the “role of judges.”
The federal court of appeals in D.C. holds that the courts can’t enforce Congressional subpoenas against the Executive branch.
The judges conclude it would be too messy for courts to get involved in a political battle, and that the House can use other power to enforce subpoenas. https://t.co/6TWCwCbWDn
— Renato Mariotti (@renato_mariotti) February 28, 2020
The court overturned a lower court decision in the US House of Representatives’ lawsuit that sought to force McGahn to testify in the Democrats’ probe into Special Counsel Robert Mueller’s Russia investigation. The majority opinion’s focus on the balance of power between branches of government effectively invalidated future congressional subpoenas to the White House as Judge Thomas Griffith warned of the precedent that could be set.
“If we order McGahn to testify, what happens next? McGahn, compelled to appear, asserts executive privilege in response to the Committee’s questions,” the appointee of President George W. Bush wrote in the majority opinion.
“The Committee finds those assertions baseless,” Griffith continued. “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.”
The opinion noted that involving the courts in disputes such as this would discourage negotiation and politicize the process.
“Adjudicating these disputes would displace this flexible system of negotiation, accommodation, and (sometimes) political retaliation with a zero-sum game decided by judicial diktat,” Griffith wrote.
Democrats in the House Judiciary Committee subpoenaed McGahn last April as part of their obstruction probe, but the White House, under Trump’s orders, would not allow him to release documents or testify before the panel. The House lawsuit against McGahn coincided with the ongoing process of the Democrats’ attempt to impeach the president and amid arguments from the Department of Justice that presidential advisers had “absolute immunity” from testifying before Congress.
Judge Karen Henderson did not agree with that claim, though she did concur with the majority ruling.
“McGahn’s assertion of absolute testimonial immunity against compelled congressional process is, in my opinion, a step too far, again, under Supreme Court precedent,” Henderson, an appointee of President George H.W. Bush, wrote.
Judge Judith Rogers, an appointee of President Bill Clinton, was the dissenting vote in Friday’s ruling.
“In the context of impeachment, when the accuracy and thoroughness of the investigation may well determine whether the President remains in office, the House’s need for information is at its zenith,” Rogers wrote.
But Griffith, in the majority opinion, asserted the federal court’s stand that it could not police the dispute between the House Judiciary Committee and the White House.
“If federal courts were to swoop in to rescue Congress whenever its constitutional tools failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual ‘overseer[s]’ of our elected officials. That is not the role of judges in our democracy, and that is why Article III compels us to dismiss this case,” Griffith wrote in the opinion.
The Justice Department issued a statement Friday expressing praise for the “historic ruling.”
“We are extremely pleased with today’s historic ruling from the D.C. Circuit recognizing that the House of Representatives cannot invoke the power of the courts in its political disputes with the Executive Branch,” DOJ spokeswoman Brianna Herlihy said. “Suits like this one are without precedent in our nation’s history and are inconsistent with the Constitution’s design. The D.C. Circuit’s cogent opinion affirms this fundamental principle.”
Democrats will be moving ahead with an appeal, looking at a March 9 deadline, according to House Speaker Nancy Pelosi and other House lawmakers.
— House Judiciary Dems (@HouseJudiciary) February 29, 2020
Critics of the White House expressed their disapproval of the decision.
“I found the court’s opinion wholly unconvincing, the concurring opinion transparently forced, and the dissent at least initially persuasive,” Harvard Law Professor Laurence Tribe told Law & Crime. “The net effect of this circuit court decision, if upheld by SCOTUS, would be to destroy the vital impeachment power altogether whenever a president digs in and essentially dares the country to ‘come and get me while I hold all the evidence that proves my guilt of the highest crimes imaginable.’”
NBC legal analyst Glenn Kirschner called the court’s ruling “even deadlier to our nation than the Coronavirus” in a tweet.
This court ruling may prove to be even deadlier to our nation than the Coronavirus. But there is a cure to this virulent Court opinion that tacitly endorses Trump’s lawless tactics. The cure, as I’ve argued from day 1: Congress’s power of INHERENT CONTEMPT https://t.co/reFuZM5rtk
— Glenn Kirschner (@glennkirschner2) February 28, 2020
“Richard Nixon’s lawyers infamously once told the courts that, in their client’s view, he was effectively King Louis XIV, albeit with term limits and subject to impeachment,” national security attorney Bradley Moss told Law&Crime. “With this ruling today, Donald Trump has taken yet another step to make that dream closer to a reality for the Office of the Presidency and provided further legal shielding for the Executive Branch from any outside scrutiny.”
But Republicans and Trump’s supporters who have consistently raised the alarm over the Democrats’ sham investigative efforts against the president and his administration praised the federal court decision.
Today’s #McGahn ruling confirms what Republicans have said all along. Getting executive branch information takes time and accommodations. Democrats threw a temper tantrum by demanding information in the manner, form, and forum of their choosing. https://t.co/VXe17AEDXO
— Rep. Doug Collins (@RepDougCollins) February 28, 2020
A significant ruling — In a big victory for President Trump -the DC Court of Appeals dismisses House Judiciary Committee’s effort to force former White House Counsel Don McGahn to testify, in a 2-1 ruling.
— Bret Baier (@BretBaier) February 28, 2020
The DC ruling further demonstrates that Article 2 on obstruction of congress was premature, as I testified. The White House is vindicated in showing that it had valid constitutional arguments to make — arguments ridiculed at the Senate trial . . . https://t.co/QJewtgZxeE
— Jonathan Turley (@JonathanTurley) February 28, 2020
— Congresswoman Debbie Lesko (@RepDLesko) February 28, 2020