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