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In ‘Stunning’ 2-1 Decision, Appeals Court Says Congress Can’t Enforce Subpoena Against Ex-WH Counsel Don McGahn

A federal appeals court in Washington, D.C. on Monday ruled that the U.S. House of Representatives does not have any legal authority to enforce a subpoena against former White House counsel Don McGahn. In a 2-1 decision penned by Judge Thomas B. Griffith, a George W. Bush appointee, the U.S. Circuit Court of Appeals for the District of Columbia reasoned that the Constitution does not grant a congressional committee the power to enforce its own subpoenas, dismissing the case in favor of McGahn.

“Congress has no implied constitutional power to seek civil enforcement of its subpoenas. The Committee thus cannot identify an underlying judicial remedy that could authorize it to invoke the Declaratory Judgment Act,” Griffith wrote. “Because the Committee lacks a cause of action to enforce its subpoena, this lawsuit must be dismissed.”

Judge Griffith stated, however, that while the committee does not currently have such enforcement power, that could be rectified if Congress passed a law granting such authority. Notably, Griffith is soon to be replaced on the court by Donald Trump appointee and staunch conservative U.S. District Judge Justin Walker.

“We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit,” he wrote. “If Congress (rather than a single committee in a single chamber thereof) determines that its current mechanisms leave it unable to adequately enforce its subpoenas, it remains free to enact a statute that makes the House’s requests for information judicially enforceable. Indeed, Congress has passed similar statutes before, authorizing criminal enforcement in 1857 and civil enforcement for the Senate in 1978.”

University of Texas law professor Steve Vladeck called the decision “stunning,” saying he expected the issue to be appealed and taken up by the court’s full panel of judges (the full D.C. Circuit rejected Michael Flynn’s emergency petition for a writ of mandamus on Monday).

“Judge Griffith is having a busy last day. Here’s his stunning opinion for a 2-1 panel holding that the House lacks a cause of action to enforce its subpoena against Don McGahn,” Vladeck tweeted. “His prior ruling that the House lacked standing went en banc. This will too.”

The same three-judge panel ruled earlier this year that federal courts are prohibited from resolving subpoena disputes between the legislative and executive branches. The Court’s initial decision, which severely curbed Congress’s executive oversight capabilities, was later overturned by the full slate of judges on the court in a 7-2 en banc decision. The Court reasoned the House committee had standing to seek enforcement of the subpoena for McGahn.

The en banc court, having established that Congress had proper standing to seek judicial enforcement of the subpoena, then remanded the case back to the panel to decide whether the committee had the underlying authority to enforce its subpoena. The panel’s conclusion, which essentially declares that Congress lacks the statutory authority to seek enforcement of a subpoena, is likely to again be taken up by the full D.C. Circuit.

The controversy stems from Democrats on the House Judiciary Committee seeking McGahn’s testimony via a duly-authorized subpoena issued early in the impeachment inquiry into President Donald Trump. House investigators characterized McGahn’s knowledge of White House decisions as crucial to what special counsel Robert Mueller described as potential obstruction of justice.

After McGahn ignored a voluntary document request, Democrats issued him a testimonial subpoena in April 2019. The Trump administration then intervened demanding that McGahn flout the subpoena “in order to protect the prerogatives of the office of the presidency.”

The Department of Justice (DOJ) also claimed that the president and his closest advisors are entitled to absolute immunity from such requests and that “subjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the president himself to appear before Congress.”

U.S. District Judge Ketanji Brown Jackson penned a scathing 120-page ruling in Nov. 2019, ordering McGahn to comply with the congressional subpoena.

Read the full opinion below:

McGahn DC Circuit Opinion by Law&Crime on Scribd

[image via Saul Loeb-Pool_Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.