In a 2-1 Decision, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit has ruled that the Federal Courts will not compel former White House Counsel Don McGahn to testify in front of the House Judiciary Committee.
The two judges in the majority, Thomas B. Griffith and Karen LeCraft Henderson, are Republican appointees. The dissenting judge, Judith W. Rogers, is a Democratic appointee.
In November, U.S. District Court Judge Ketanji Brown Jackson had issued a decision upholding a subpoena issued in August by the House Judiciary Committee to Don McGahn, ordering him to appear before the Committee and to testify about his dealings with President Donald Trump in connection with Special Counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 U.S. election. Trump ordered McGahn not to testify. Even though he was no longer in Government service, McGahn followed Trump’s order. The House Judiciary Committee sued in U.S. District Court for the District of Columbia to enforce its subpoena.
In her November decision, Judge Jackson had rejected arguments that McGahn was "absolutely immune from compelled congressional testimony.” She based her decision on the basic principle that no one is above the law. “Presidents are not kings,” she wrote, and noted that both current and former White House officials owe allegiance to the Constitution and not to the President. Presidents, “... do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”
Judge Jackson held that if McGahn wanted to refuse to testify on the basis of executive privilege, he would have to do so in person, question by question.
McGahn, represented by the Justice Department, appealed.
The Justice Department argued that the Executive and the Legislative Branches were co-equal, and that they were engaged in a political dispute. The DoJ argued that the Federal Judiciary, as the third co-equal branch, should stay out of the matter. At oral argument, the DoJ attorney who appeared before the Circuit Court said that if the Judiciary choose sides in the fight between the Executive and Legislative Branches, it would undermine “public confidence in the court[s].”
The majority decision, written by Judge Griffith, held that the Judiciary should not intervene and that the House Judiciary Committee lacked standing (a judicially recognizable stake in the outcome). The Court thus rejected the Judiciary Committee’s argument that it did indeed possess Article III standing because McGahn’s ignoring of the Committee’s subpoena had caused, “... an actual and concrete injury to its right to compel information...” needed for, among other things, “assessing the need for remedial legislation,” and “conduct[ing] oversight of DOJ.”
The majority opinion held that the Court lacks authority to resolve the dispute.
The Constitution does not vest federal courts with some “amorphous general supervision of the operations of government.
[...]
We cannot decide this case without declaring the actions of one [Branch] or the other unconstitutional, and ‘occasions for constitutional confrontation . . . should be avoided whenever possible.’
The majority opinion held that Congress has other means of obtaining cooperation from the Executive Branch, including its Power of the Purse, its Power of Impeachment, its “political tools” to harness public opinion, and its ability to hold McGahn in inherent contempt.
Judge Henderson issued a concurring opinion. Its opening paragraph reads as follows:
I join Judge Griffith in concluding that, under United States Supreme Court precedent, the Committee lacks standing. I am reluctant, however, to endorse what I view as McGahn's categorical stance. In his swing for the fences, McGahn has passed up a likely base hit. First,McGahn urges us to foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute; I do not believe, however, Supreme Court precedent supports a holding of that scope. Second, McGahn's assertion of absolute testimonial immunity against compelled congressional process is, in my opinion, a step too far, again, under Supreme Court precedent.
In dissent, Judge Rogers argued that the Court has now fatally wounded the Congressional power of oversight and has given a blank check to the Executive to ignore legitimate exercises of Legislative power. She wrote that the majority opinion encourages, “Presidential stonewalling.” She wrote that Congress’s “alternative remedies [are] impracticable,” and that, “there is nothing political about the case itself.”
Speaker of the House Nancy Pelosi released a statement late Friday.
“Today’s split Court of Appeals ruling in the McGahn case does not contradict what the Courts have continued to rule: that the President’s claims of ‘absolute immunity’ from Congress’s subpoenas are false.
“The Court of Appeals’ claim that ‘Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute’ is contrary to reason and precedent, as was recognized by the dissent. Even President Trump’s own lawyers told the American people over and over again during the impeachment trial that the House should have gone to court to enforce its subpoenas – while at the same time arguing the exact opposite in the courtroom.
“The House will now pursue an en banc rehearing of this decision. We will continue to honor our responsibility to exercise our constitutional authority to conduct oversight on behalf of the American people, including by issuing our lawful and legitimate subpoenas.”
An en banc hearing would bring the matter before the entire U.S. Court of Appeals for the D.C. Circuit. The full Circuit Court would review the ruling of the three-judge panel. No matter which way the full Circuit Court rules, the matter may well end up before the Supreme Court.