POLITICS

Devastating Court Ruling Allows White House To Block Testimony From Former Counsel Don McGahn

The ruling “all but assures future Presidential stonewalling of Congress,” a dissenting judge wrote.
Former White House counsel Don McGahn on Dec. 12, 2019, at the NYU Global Academic Center in Washington, D.C. (Photo by Alex
Former White House counsel Don McGahn on Dec. 12, 2019, at the NYU Global Academic Center in Washington, D.C. (Photo by Alex Wong/Getty Images)

A federal appeals court in Washington, D.C., on Friday dismissed a lawsuit from House Democrats who were seeking testimony from former White House counsel Don McGahn as part of a broader investigation into President Donald Trump.

In a 2-1 decision by a three-judge panel, the U.S. Court of Appeals for the District of Columbia Circuit said it lacked jurisdiction to hear the case, agreeing with the Trump administration’s position that the U.S. Constitution forbids federal courts from resolving interbranch information disputes.

“The Committee’s suit asks us to settle a dispute that we have no authority to resolve,” the opinion states.

The House Judiciary Committee subpoenaed McGahn in 2019 as part of its investigation into Trump’s potential obstruction of former special counsel Robert Mueller’s Russia probe. McGahn previously told Mueller’s grand jury that Trump ordered him to direct the Department of Justice to fire Mueller in 2017 in order to end the probe. He did not carry out the order. This incident appeared as one of 10 potentially obstructive acts committed by Trump in Mueller’s final report.

Democrats sought to bring McGahn before the committee to get his testimony on this alleged obstruction. But the White House declared that the president and his direct aides had an “absolute immunity” from congressional investigation and ordered McGahn not to honor the subpoena. The administration never made a formal declaration of executive privilege over McGahn’s testimony.

The court said Democrats will just have to find some other way to force the administration to comply with their demands.

“Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees, harness public opinion, delay or derail the President’s legislative agenda, or impeach recalcitrant officers,” the court wrote. “And Congress can wield these political weapons without dragging judges into the fray.”

Democrats haven’t embraced the use of hardball legislative tactics to gain leverage. For a time last year, they entertained the idea of using their own power to arrest or fine recalcitrant administration officials, but ultimately rejected using the so-called “inherent contempt” power.

A name plate for McGahn sits on the witness table prior to a House Judiciary Committee hearing in which he was subpoenaed to
A name plate for McGahn sits on the witness table prior to a House Judiciary Committee hearing in which he was subpoenaed to testify May 21, 2019, on Capitol Hill. President Donald Trump directed McGahn not to comply with the subpoena.

The majority opinion is clear to state that its decision only applies to certain interbranch disputes and not subpoenas issued by Congress to private individuals or entities. ”[W]e may adjudicate cases concerning congressional subpoenas if they implicate the rights of private parties, as in Mazars,” the opinion reads, noting a key case currently before the Supreme Court where a congressional committee has subpoenaed Trump’s personal financial records from his accounting firm. The opinion also does not overrule any future attempt by Congress to pass a law enabling it to bring disputes with the executive branch to the federal judiciary.

The court acknowledged there are several past instances of Congress using courts to settle disputes between Congress and the White House, including a favorable decision House Republicans got in the Fast and Furious case against former Attorney General Eric Holder. But the court said “the legal basis for that practice is dubious.”

Circuit Judge Judith W. Rogers dissented from the opinion, writing that the majority’s ruling “removes any incentive for the Executive Branch to engage in the negotiations process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties.”

A concurrence to the majority opinion filed by Judge Karen L. Henderson directly addressed the claim of “absolute immunity” to state that it “rests on shaky legal ground.”

The decision will have immediate implications for Democrats’ efforts to get President Trump’s tax returns. The administration refused their formal request last year, and the case has been stuck in a lower court. The judge in that case paused the proceedings to wait for an outcome in the McGahn case. Now that the appeals court has dismissed it, the lower judge is likely to say Democrats lack standing to sue for the president’s taxes.

Shortly after the McGahn ruling dropped, the judge in the tax case ordered a hearing for next week.

A federal judge had previously ruled that McGahn must comply with the subpoena, writing that “Presidents are not kings” and were subject to congressional oversight. 

The ruling is embedded below.

CORRECTION: A previous version of this article initially misidentified the panel’s dissenting judge.

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