House asks full appeals court to rehear McGahn case

The House is asking a full appeals court to rehear its case for subpoenaing former White House counsel Don McGahn after a divided three-judge panel ruled last week that congressional subpoenas of the executive branch are legally unenforceable.

Lawyers for the House Judiciary Committee warned the D.C. Circuit Court of Appeals in a court filing on Friday that if the decision were to stand, it would undermine Congress’s constitutional role.

“This unprecedented ruling compels the attention of the full Court. The panel decision conflicts with D.C. Circuit precedent, prevents the House from carrying out its function as a check on the power of the Executive, and undermines Congress’s authority to fulfill its Article I responsibilities,” the filing reads. “Present circumstances—in which the President has announced broadscale defiance of Congress’s oversight power—underscore how dramatically this ruling could upset the constitutional balance of powers.”

A panel of D.C. Circuit judges ruled 2-1 last week that Congress cannot sue to enforce its subpoenas of the executive branch, reasoning that the courts are forbidden from resolving disputes between different branches of government.

The two judges who sided with President Trump’s appeal were both appointed by Republicans, and the lone dissenting judge was appointed by former President Clinton.

“If we order McGahn to testify, what happens next? McGahn, compelled to appear, asserts executive privilege in response to the Committee’s questions,” Judge Thomas Griffith wrote in the majority opinion. “The Committee finds those assertions baseless. In that case, the Committee assures us, it would come right back to court to make McGahn talk.

“The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often,” he added.

If the House’s petition is granted, the case will be heard again by the full circuit court and lawyers for both sides will have to argue before all 17 of its judges.

The Judiciary Committee subpoenaed McGahn last year for testimony in the House’s impeachment inquiry against Trump. He refused to comply, and the House sued to have the courts enforce the order.

The Trump administration argued in court that the president and his aides have absolute immunity from congressional subpoena.

Judge Ketanji Brown Jackson, an Obama appointee on the D.C. District Court bench, sided with the House, ordering McGahn to comply with subpoena and rejecting the administration’s broad claims of immunity.

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote in her opinion. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

The panel’s decision last week did not rule on Trump’s claims of immunity, deciding only that the dispute did not belong in federal court.

In a footnote to Friday’s filing, the committee said that even though the impeachment trial concluded with Trump’s acquittal, it is still seeking McGahn’s testimony.

“The Committee still needs McGahn’s testimony to fulfill its legislative and oversight functions,” the House said in its petition. “Additionally, if information comes to light about serious Presidential misconduct—for example, if McGahn’s testimony reveals that President Trump committed criminal obstruction of justice—the Committee would have to consider whether to recommend new articles of impeachment.”

Rep. Jerrold Nadler (D-N.Y.), the chairman of the House Judiciary Committee, said the decision would “severely undermine the House’s ability to perform its constitutional functions as a check on the Executive Branch.”

“In fact, none other than 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,” Nadler said in a statement. “The full Court should promptly rehear this case and make clear, once and for all, that White House aides cannot ignore subpoenas from Congress. Now more than ever, the courts cannot abandon their responsibility to resolve these critical legal disputes.”

Updated: 1 p.m.