An appeals court panel rejected an effort by House Democrats to have the court enforce a subpoena for testimony from former White House counsel Don McGahn, concluding the congressional committee lacks a cause of action.
The 2-1 ruling by a three-judge panel on the U.S. Court of Appeals for the District of Columbia resulted in a nine-page majority opinion by Judge Thomas Griffith, appointed by former President George W. Bush in 2005. Judge Karen Henderson, an appointee of former President George H.W. Bush, joined the opinion. Earlier this month, the full D.C. appeals court ruled that the Democratic-led House Judiciary Committee had standing to sue the federal courts to enforce its subpoena against McGahn but sent it back to a three-judge appeals panel to look at other issues.
“The en banc court held that the Committee on the Judiciary of the House of Representatives has Article III standing to seek judicial enforcement of a subpoena issued to former White House Counsel Donald F. McGahn. It remanded the case to this three-judge panel to consider the remaining issues, including whether the Committee has a cause of action to enforce its subpoena and, if so, whether McGahn must testify despite the Executive Branch’s assertion of absolute testimonial immunity,” the majority opinion stated. “We have no occasion to address the immunity argument because we conclude that the Committee lacks a cause of action. Accordingly, the case must be dismissed.”
The ruling is a win for the Trump administration and makes it unlikely that McGahn will be forced to testify before the November election, if ever. The House Judiciary Committee, led by Democratic Chairman Jerry Nadler of New York, had been trying to obtain testimony from McGahn since early 2019 on matters relating to special counsel Robert Mueller’s Russia investigation, but the White House blocked him from testifying under the cover of “absolute immunity” from congressional subpoenas.
“Time and again, the Supreme Court has warned federal courts to hesitate before finding implied causes of action — whether in a congressional statute or in the Constitution,” the opinion continued. “In this case, Congress has declined to authorize lawsuits like the Committee’s twice over. First, Congress has granted an express cause of action to the Senate — but not to the House. Second, the Senate statute expressly excludes suits that involve executive-branch assertions of ‘governmental privilege.’ The expression of one thing implies the exclusion of the other, and authorizing the Committee to bring its lawsuit would conflict with two separate statutory limitations on civil suits to enforce congressional subpoenas … We should not ignore Congress’s carefully drafted limitations on its authority to sue to enforce a subpoena.”
The judges added: “Congress may someday determine that the federal courts should stand ready to enforce legislative subpoenas against executive-branch officials, but authorizing that remedy ourselves would be ‘incompatible with the democratic and self-deprecating judgment’ that we lack the ‘power to create remedies previously unknown to equity jurisprudence.’”
Judge Judith Rogers, appointed by former President Bill Clinton and confirmed in 1994, authored the early August full-court opinion and dissented from the panel on Monday.
“McGahn’s contention that he is entitled to absolute immunity from the Committee’s subpoena lacks merit,” Rogers said in her 12-page dissent. “McGahn contends that, notwithstanding the Committee’s Article III standing, there is no statutory or constitutional authorization for the Committee to bring the present subpoena enforcement lawsuit. But there is both an implied cause of action under Article I of the Constitution and a cause of action pursuant to the Declaratory Judgment Act authorizing the Committee to bring this lawsuit.”
The McGahn subpoena came well before the Ukraine-related impeachment investigation into Trump, but Democrats said they saw testimony from the former White House counsel as important to the process despite the articles of impeachment centering around events that took place after McGahn left the White House.
McGahn, who served as counsel from Trump’s inauguration through his resignation in October 2018, is mentioned 71 times in Mueller’s 448-page report. Mueller concluded that the Russians interfered “in sweeping and systematic fashion” during the 2016 presidential election, but he “did not establish” any criminal conspiracy between the Kremlin and the Trump campaign.
Democrats sued McGahn last August, claiming to need his testimony on Mueller’s inquiry, particularly the 10 instances of possible obstruction of justice that Mueller outlined in his report. Attorney General William Barr and then-Deputy Attorney General Rod Rosenstein concluded that justice had not been obstructed.
When Mueller’s office asked McGahn about allegations that Trump had pressured him to fire the special counsel, “McGahn responded that he would not refute the press accounts because they were accurate in reporting on the President’s effort to have the Special Counsel removed,” according to Mueller’s report.
In May 2019, Assistant Attorney General Steven Engel concluded that McGahn could not be compelled to testify by Congress.
“We provide the same answer the Department of Justice has repeatedly provided for nearly five decades: Congress may not constitutionally compel the president’s senior advisers to testify about their official duties,” Engel wrote. “Those principles apply to the former White House Counsel. Accordingly, Mr. McGahn is not legally required to appear and testify about matters related to his official duties as counsel to the president.”
In November, U.S. District Judge Ketanji Brown Jackson ruled in favor of the Democrats, although that was quickly appealed to the three-judge appeals court panel.
