Appeals Court Deals Blow to House Subpoena Power in Don McGahn Case

Then-White House Counsel Don McGahn speaks at the Conservative Political Action Conference (CPAC) at National Harbor, Maryland, on Feb. 22, 2018. Reuters/Kevin Lamarque

A divided federal appeals court ruled on Monday that the House cannot look to federal courts to enforce its subpoenas because there is no law that gives the chamber the power to do so.

The D.C. Court of Appeals issued their ruling in the case stemming from a congressional subpoena seeking former White House counsel Don McGahn’s testimony before Congress. The judges ruled 2-1 to dismiss the lawsuit brought by the House Judiciary Committee, the second time a D.C. Circuit Court panel had done so.

“Because the Committee lacks a cause of action to enforce its subpoena, this lawsuit must be dismissed,” Judge Thomas Griffith, a former President George W. Bush appointee, wrote for the majority (pdf). “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.”

The ruling is a major setback for lawmakers in the House committee, who have been seeking McGahn’s testimony since the spring of 2019 about his knowledge of alleged ties between the Trump presidential campaign and Russia.

House Democrats have launched a slew of investigations, which included the subpoena of McGahn, in an effort to find information that could lead to the impeachment of the president.

The White House blocked his appearance in May, asserting executive privilege over the documents. This prompted House Democrats to subsequently sue McGahn in August 2019 in an attempt to enforce the subpoena.

If Monday’s decision stands, it could have a significant impact on the House’s ability to subpoena information and testimony from witnesses who are unwilling to provide the information.

The panel majority said that Congress could one day determine that 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.’”

“Balancing the various policy considerations in crafting an enforcement statute is a legislative judgment. For that reason, the Constitution leaves to Congress—and not to the federal courts—the authority to craft rights and remedies in our constitutional democracy. Perhaps ‘new conditions’ ’might call for a wrenching departure from past practice’ and for a new statute allowing the House to leverage the power of federal courts to compel testimony or the production of documents,” Griffith wrote.

“But if any institution is well-positioned to ‘perceive’ those new conditions, to assess Congress’s needs, to balance those needs against the countervailing policy considerations, and then ’to design the appropriate remedy,' that institution is Congress,” he added.

Judge Judith Rogers, a Clinton-appointee, dissented in the judgement, who argued that the House committee has an implied cause of action under Article I of the Constitution.

“The power that the Committee seeks to exercise in the present lawsuit flows from the Constitution,” Rogers wrote.

She said Congress needs access to information to perform its constitutional duties and that the Supreme Court had acknowledged “the essentiality of information to the effective functioning of Congress.”

Earlier this month, the judges of the full D.C. Circuit Court of Appeals ruled 7–2 to overturn a divided panel opinion from February that found that the House lacked standing to seek judicial enforcement of the McGahn subpoena. The panel ruled that the House has the right to bring suits to enforce its subpoenas but also allowed McGahn to continue challenging the subpoena on other grounds.

In February, the appeals court ruled 2-1 that McGahn was not required to testify, agreeing with the DOJ’s argument that the Constitution bars federal courts from resolving disputes between the legislative and executive branches. In March, the appeals court agreed to rehear the case before the full panel of the court and vacate the February ruling.

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), Permanent Select Committee on Intelligence Chairman Adam Schiff (D-Calif.), Oversight and Reform Committee Chairwoman Carolyn B. Maloney (D-N.Y.), Foreign Affairs Committee Chairman Eliot L. Engel (D-N.Y.), Ways and Means Committee Chairman Richard E. Neal (D-Mass.), and Financial Services Chairwoman Maxine Waters (D-Calif.) issued a joint statement in response to the ruling, calling it an error.

“House Committee Chairs from both parties have previously and successfully relied on the courts to enforce subpoenas—to hold otherwise would undermine a critical constitutional check on the executive branch. Just as the last decision of the panel was appealed and reversed, we expect to appeal this decision without delay to the full D.C. Circuit,” the lawmakers said.

“Witnesses have an obligation to appear and give testimony when subpoenaed by a congressional committee, and nobody—not Mr. McGahn, and certainly not President Trump—is above the law.”

The Justice Department did not immediately respond to The Epoch Times’ request for comment on the ruling.