D.C. Circuit Rules In Favor Of White House In Barring McGahn Testimony [Updated]

This morning I have a column in the Hill newspaper on the devastating loss of the House of Representatives in The Committee on Judiciary v. Don McGahn last night. The D.C. Circuit sided with Trump in reversing a lower court and refusing to order the appearance of former White House Counsel Donald McGahn before Congress. It is not just a huge victory for the White House in barring such testimony but a devastating loss to the authority of Congress in future conflicts. I strongly disagree with the decision, though the panel fractured on both the result and the rationale. Only one judge adopted the extreme view that Congress should not have standing to seek relief from any conflicts with the White House over witnesses and evidence. Yet, the opinion represents one of the greatest legal loss in the history of the House of Representatives in terms of its enforcement of oversight authority. Notably, this follows another victory for the Trump Administration in the D.C. Circuit earlier in the week on the Trump Hotel.

As the former lead counsel representing the House of Representative in litigation, I was left cringing at every line in the opinion. This is rock bottom in terms of congressional standing and enforcement. It is in a word catastrophic. The court notes that such defiant positions were taken by “Presidents Adams, Jefferson, Monroe, Lincoln, Theodore Roosevelt, Franklin Roosevelt, Truman, Carter, and Reagan, among others.” Indeed, the court noted that giver “the President’s weighty interest in the confidentiality of his communications, one concern is that the Congress, susceptible to the fruits of political temptation, would not proceed ‘with all the protection that a district court will be obliged to provide.’”

The decision shows that the White House had valid objections in seeking judicial review. Moreover, the three different views expressed on elements of the case show that judicial review is beneficial before any rush to impeach a president for obstruction. The House Managers mocked the arguments in this case on the Senate floor.

What is interesting is the view of the court that, while congressional subpoenas are not enforceable through such actions, judicial subpoenas are. That raises the question of whether Congress should return to the Independent Counsel Act where courts issued such subpoenas in investigations. If Congress cannot enforce such subpoenas to compel testimony, it may have to reconsider its abandonment of the prior model of an independent or special counsel from the Nixon and Clinton periods.

There is one more point that deserves mention. Many have repeated the view of the House managers that the White House was arguing conflicting positions in court and in Congress: arguing that the court cannot enforce subpoenas while telling the House that it should have subpoenaed witnesses. The criticism is superficial. This was one of a number of constitutional claims that the White House wanted to raise with the courts. It would define the lines of separation of all three branches. Again, I think that the court got this decision wrong but only one judge adopted the extreme view that Congress cannot go to the courts to enforce any subpoenas from a committee.

Moreover, all of the judges agreed that the Committees could use contempt authority to enforce subpoenas, including the use of the courts for criminal contempt. This requires the cooperation of the Justice Department which I have criticized in the past for blocking such cases. Yet, Congress also has inherent contempt authority. In either case, a subpoena is a key first step. Finally, by seeking judicial review on the ability of Congress to compel such appearances, the Administration was seeking clarity on the relative positions of the Executive and Legislative branches in such disputes. The ruling, if it stands, means that the two branches have to do precisely what the panel discussed: compromise on such testimony. The Court described a long history of such refusals from presidents and how the system is designed to allow such disputes to “play out” through negotiations and compromise.

Finally, the fact that Congress cannot compel the testimony of such witnesses does have bearing on the whether the decision is so far outside of the constitutional norm that it warrants impeachment. The White House wanted a ruling to show that such appearances cannot be required by the court under our separation of powers. While that does not mention that a wholesale denial of evidence is not obstruction of Congress, the defiance does not extend to the violation of court order and, according to this court, it is not unique over history. The judicial review was material to the rivaling claims of the both political branches on impeachment and the Congress lost.

I do not blame the House General Counsel or the House leadership in bringing this action. I in fact encouraged it. This was not a bad case. This is a bad decision and they now have to appeal. I would ask for a full en banc review of the D.C. Circuit before petitioning the Supreme Court.

Here is the opinion: McGahn opinion

77 thoughts on “D.C. Circuit Rules In Favor Of White House In Barring McGahn Testimony [Updated]”

  1. The GOP blocked nearly 100 of Obama’s federal judges, then rammed through GOP judges after Obama left office. The GOP gamed the entire judicial system. Pretty dirty, is it legal or constitutional?

    1. Obama to replace U.S. Attorneys


      05/15/2009 08:34 AM EDT

      President Barack Obama plans to replace a “batch” of U.S. Attorneys in the next few weeks and more prosecutors thereafter, according to Attorney General Eric Holder.

      “I expect that we’ll have an announcement in the next couple of weeks with regard to our first batch of U.S attorneys,” Holder said Thursday during a House Judiciary Committee hearing which stretched out over most of the day due to breaks for members’ votes. “One of the things that we didn’t want to do was to disrupt the continuity of the offices and pull people out of positions where we thought there might be a danger that that might have on the continuity–the effectiveness of the offices.But…elections matter–it is our intention to have the U.S. Attorneys that are selected by President Obama in place as quickly as they can.”

      Holder’s comments begin to resolve questions in the legal community about whether the new administration would hesitate to replace the chief prosecutors en masse because of the intense controversy that surrounded President George W. Bush’s unusual mid-term replacement of nine U.S. attorneys in late 2006. In addition, legal sources said some Bush appointees were looking to burrow in, in part to avoid a grim economic climate for private-sector legal jobs.

      However, by using terms like “elections matter,” Holder seems to be signaling that Obama plans to install new leadership in most offices.

      – Politico

  2. No student of the law am I. As I read the Constitution, the House of Representatives is all powerful regarding matters of impeachment proceedings. So no supoena is required to compel testimony. Send the Capitol police with handcuffs, if necessary.

    1. Lonely night yet again for Benson

      When a dude his age uses a legal blog to engage in conversations with himself and issues edicts, you know things are not good

    2. “In the modern world, the House sergeant-at-arms isn’t going to be able to arrest the attorney general, who is protected by an armed FBI security detail. As one former White House official once put it, only half in jest, “They have a lot of guns over there.”
      Theoretically, they could try it. As a practical matter, it could get messy.
      It’s not only the FBI that could get involved if there were to be an attempt by the House to arrest a member of the Executive Branch.
      As head of the Executive Branch and as Commander- in- Chief, the president could direct the Secret Service, the U.S. Marshalls, and even the military to block any attempt by the House to “slap handcuffs on” and drag in a witness.

    3. How does an individual know he is to appear; perhaps an engraved invitation?

    1. Let’s see.

      One and only one branch may impeach and convict each and every civil officer of the United States.

      Sounds unequal to me, with Congress being definitively superior.

  3. Johnathan, this shows that the defining argument of your career was wrong. The House did not rush to impeachment. Letting things play out in court has been useless to seeking truth. History should view you as enabler of this corrupt president.

  4. So Trump’s lawyers successfully convinced the Senate that if the House wants to enforce a subpoena over the President’s objections, it must take him to court.

    But Trump’s lawyers also successfully convinced a court that if the House wants to enforce a subpoena over the President’s objections, it cannot do so in court.


    An implied presidential power that allows the president to refuse to disclose information regarding confidential conversations or national security to Congress or the judiciary (limited by US v. Nixon)

    – Quizlet


    “Both types of privilege are based on the policy to promote marital felicity, and Under the Federal Rules of Evidence, in a criminal case the prosecution cannot compel the defendant’s spouse to testify against him. Also refer as spousal immunity, marital privilege or spousal testimonial privilege.”

    – Halscott Megaro


    This provision of the Fifth Amendment protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution.

    – Annenberg

    1. Lilith, 🐶 says Hi, George. 😉

      If she ever needs a dog babysitter, you’re number 1 on my speed dial.

      Just don’t get between her and her food, that’s a no-no.

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