An appeals court ruled that the Democrat-led House Judiciary Committee is allowed to use the federal courts to enforce its subpoena against former Trump administration White House counsel Don McGahn.
Judge Judith Rogers, appointed to the U.S. Court of Appeals for the District of Columbia by President Bill Clinton and confirmed in 1994, authored the 7-2 decision opinion for the nine judges who heard the case, two of whom wrote dissenting opinions. She overturned the ruling by the appeals court’s three-judge panel, which had said the Democrats did not have the power to enforce the subpoena in court.
“We hold that the Committee has Article III standing to seek enforcement in federal court of its duly issued subpoena in the performance of constitutional responsibilities,” the full appeals judge panel ruled on Friday.
Though Friday’s appeals court ruling concluded that congressional Democrats do have the standing to sue in federal court to enforce the subpoena, the judges also said that McGahn would be allowed to continue fighting against the subpoena on other legal grounds in front of the original three-judge panel, which ruled 2-1 against the Democrats earlier this year.
A smaller three-judge panel issued a 2-1 decision in February that said that McGahn did not have to comply with the House subpoena, overruling a previous lower court decision. 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 investigation, but the White House blocked him from testifying.
“Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute,” the three-judge panel said in February. “We agree and dismiss this case.”
The McGahn subpoena came well before the Ukraine-related impeachment investigation into President 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 Russia investigation 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 in 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.
Democrats appealed the three judge panel decision in March.
“The Committee’s petition argues that the panel’s ruling misread binding precedent and — if allowed to stand — would severely undermine the House’s ability to perform its constitutional functions as a check on the Executive Branch,” Nadler said earlier this year. “The full Court should promptly rehear this case and make clear, once and for all, that White House aides cannot ignore subpoenas from Congress.”
“The ordinary and effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary,” Rogers ruled on Friday, adding, “In sum, by virtue of the House’s long-recognized subpoena power, the Committee was entitled to McGahn’s testimony pursuant to its duly issued subpoena, which he has never challenged, and the specific information the Committee would learn therefrom in connection with carrying out its constitutional duties.”
Judge Karen Henderson, appointed by President George H.W. Bush, dissented, saying, “I continue to believe the longstanding practice of resolving political disputes without judicial intervention counsels against the Committee’s standing here.” Judge Thomas Griffith, who has served on the appeals court since 2004 after an appointment by President George W. Bush, also dissented, lamenting that “today the court relegates the separation of powers from a core component of Article III to an afterthought.”
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.
“This Court holds that individuals who have been subpoenaed for testimony by an authorized committee of Congress must appear for testimony in response to that subpoena — i.e., they cannot ignore or defy congressional compulsory process, by order of the President or otherwise,” Jackson said.
