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. Jonathan: So if Congress can’t enforce its subpoenas and no one has standing to sue Trump for his continuing violations of the emoluments clause where does that leave us? It leaves is with a monarchy–an imperial presidency in which the king can’t be challenged. Of course, all of this was made possible by Trump and Mitch McConnell who have packed the courts with conservative judges and justices who have no problem with a unitary form of government. Hopefully, the voters will wake up in November and take back our democracy

    1. where does that leave us?

      Right where establishment Democrats didn’t want to be…with the exercise of our democratic process in the hands of a massive, angry electorate, that will reelect President Trump and vote Republican all the way down ticket. 🙂

      1. The process in the hands of a massive ANGRY electorate with the thinking skills of Trump supporters sounds more like 1933 Germany.

          1. Yeah, “we” got really pissed off in 2018 so hard that the republicans got voted out at federal and state levels with voter turnout never seen before in a midterm. But that’s right, you live in the alternate reality.

          1. Olly, did you or did you not take a oath to support and defend the Constitution of the US? Against ALL enemies, foreign and domestic? And you believe in a con-man who lied about his contacts with Russia? Well, PICK A SIDE.

            1. Against ALL enemies, foreign and domestic? PICK A SIDE.

              I defend against both. That way you will never be able to hide.

        1. Ask your therapist why people project their own faults onto others. It might help you get better.

    2. Nah, it leaves us with Democracy. If we don’t like our President, then he won’t be reelected. That’s a pretty advanced concept you might not understand.

  2. His name is Adam Corona Schiff. And he’s Not Responsible for what he’s doing!
    His mother made him what he is.
    So it’s up against the wall redneck mother’s.

  3. Jonathan told Congress the remedy for Trump’s obstruction was not impeachment, but they need to rely on courts to enforce congressional subpoenas.

    The court said nope, Jonathan was wrong, the courts are not the place to enforce Congressional subpoenas.

    Given this, Congress needs to go back to impeachment which is now the only remedy.

    1. It’s not a ‘remedy’ to anything, because there was nothing to ‘remedy’.

    2. The court said nope, Jonathan was wrong, the courts are not the place to enforce Congressional subpoenas.

      You apparently didn’t read the decision. That’s not what they said.

      but Article III grants federal courts “‘Power’ to resolve not questions and issues but ‘Cases’ or ‘Controversies,’” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 132 (2011) (quoting U.S. CONST. art. III). We may not disregard this limitation simply to “settle” a dispute “for the sake of convenience and efficiency.” Raines v. Byrd, 521 U.S. 811, 820 (1997)…(“The Framers, however, did not make the judiciary the overseer of our government.”). Instead, as Chief Justice Marshall explained, federal courts sit “to decide on the rights of individuals.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) (emphasis added). To that end, we lack authority to resolve disputes between the Legislative and Executive Branches until their actions harm an entity “beyond the [Federal] Government.” Raines, 521 U.S. at 834 (Souter, J., concurring in the judgment). Without such a harm, any dispute remains an intramural disagreement about the “operations of government” that we lack power to resolve. In this case, the Committee’s dispute with the Executive Branch is unfit for judicial resolution because it has no bearing on the “rights of individuals” or some entity beyond the federal government. Marbury, 5 U.S. at 170. The Committee is not a private entity seeking vindication of its “constitutional rights and liberties . . . against oppressive or discriminatory government action.” Raines, 521 U.S. at 829 (internal quotation marks omitted). Nor does the Committee seek the “production or nonproduction of specified evidence . . . in a pending criminal case”—the “kind of controversy” threatening individual liberty that “courts traditionally resolve.” United States v. Nixon, 418 U.S. 683, 696-97 (1974).

      In other words, the Court decided it is not a weapon at the disposal of the Legislative branch to force the Executive branch into playing along with a scheme to find an impeachable offense.

    3. Oh please, please do impeach him again. That worked so well for you the first time around.

      1. Then The Donald will become the only Prez to be impeached twice!

  4. They got what they asked for by demonstrating their inability on the majority side to do their job in a Constitutional matter but instead chose the path straight to the end of all democracies that of a mobocracy.

  5. Adam Schiff brought on the coronavirus. You can see it in his face and his goofy eyes. His parents named him Adam after Adam and Eve. He is an Eve too.
    The Impeachment process was a scam and a sham.
    The voters need to go to the Poles and ask for help in voting out the likes of Schiff. The
    Chech are already on that side.
    Meanwhile we have the like of Bernie and Lizbeth throwing rocks at Trump and Biden and Bloomberg. Talk with your hands Bernie.

    The nation has gone to hell in the handbasket.
    Don’t take your piney out of the stock market and wait for the virus to come and go.

  6. Good. They ruled the Courts are not to be used as political weapons to resolve controversies between branches. There was no case and the Court denied Congress the power to go fishing for one.

  7. I am beginning to think that the President is far more intelligent than all of his detractors.This would include the veneer of buffoonery that he plays like a Stradivarius violin.

  8. Shiff cannot subpoena anyone anymore since they are ineffective. This is going to put a crimp in the up-coming impeachment hearings.

  9. The DEM’s hatred of Trump and the poor leadership of the House, Nancy Pelosi, Jerry Nadler, Adam Schiff blinded their judgement and now they got exactly what they deserved. Trump continues to win no matter what the Dem’s do, he is 10 steps ahead of them.

  10. Thank you Harry Reid, One in four circuit judges are now Trump appointees. And it’s only 2020.

  11. 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 testi

    Recall what Marlin FitzWater said when Kenneth Starr’s staff was hounding a sorry-assed periphery of the peripheral character named Julie Hiatt Steele: “that’s what this law does to people”. Or recall Lawrence Walsh’s six year tenure as Independent Counsel for life, and how squalidly he behaved in late 1992. You do not want to give prosecutors unlimited budgets. Ever.

  12. McGahan is a confidential employee. You want the President’s confidential employees subject to subpoenas, let’s do it across the board. And that means every judge’s clerk gets subject to grilling in front of Congress. I can’t wait.

  13. The question has to be is, why did it have to go to the courts anyway? The impeached President said he is the chief law enforcer. He is the State and the law isn’t he? His lawyers told the courts that nobody could investigate or charge him no matter what. After all, he is the Chosen One. So why all the fuss?

    1. It seems clear that you haven’t learned a thing, and that hatred of Trump, is the only thing you understand.

    2. “He is the State and the law isn’t he?”

      No, just the head of the executive branch with the power to hire and fire principle officers. Put your partisanship aside and you might need fewer visits to your therapist.

  14. I would like to personally thank Adam Schiff , from the democratic Cali-phate, for exceptional leadership. I’m waiting to see how he will apply those skills to the confluence of homelessness, illegal immigration and the upcoming pandemic in the Cali-phate. Should be easy since there are very few opposing views there.

    1. And if things get tough just remember the uplifting Cali-phate motto…”It depends what ISIS”

  15. A really honest commentator would acknowledge that this result suggests his advice to the House—to pursue Art. III review of this issue before impeachment—ended up being under-thought and painfully ill-founded, and do what he could to make that view known.

    1. Actually, the advice was very astute and proper. If the House had pursued this prior to impeachment, they would have learned that they were wrong and that the second article of Impeachment was untenable. I don’t know if anything would have stopped Adam Schiff and his Trump hating comrades from the Impeachment route, but it would have shown America how foolish and wasteful, the entire process was.

      1. they would have learned that they were wrong and that the second article of Impeachment was untenable.

        No actually quite the opposite.
        What the courts ruling means is that the impeachment for obstruction is one of the few tools that the Constitution provides the House to pressure the executive to provide testimony. Of course to make that work they need the backing of the Senate and ultimately the backing of the voters.

        1. Nah, the House shot itself in the foot by not inviting the President to participate in the impeachment inquiry with the right to call his own witnesses and question the witnesses brought against him. Only a mindless partisan would forget what happened two months ago.

          1. the House shot itself in the foot by not inviting the President to participate in the impeachment inquiry

            What you fail to realize is the House leadership is helping Trump get reelected.

  16. Now we see why the Democrats were in a hurry to circumvent the courts in their headlong dash toward impeachment.
    The inconvenience of letting the system work was not in their interests.

    1. Quite the opposite. This ruling accepts the premise that the political process (impeachment) is the correct way to enforce subpoenas.

      1. In order to lose credibility in the electorate, accelerate the collapse of the DNC and allow Americans to see the fraud of Democrat leaders…, absofknloutely

        Their impeachment was a gift to America

  17. Not sure how to state how wrong this decision from the Article III people is. Congress is Article I, pre-eminent. What Congress states, goes. Maybe they need their own enforcers.

    1. Smarter people than you or I realized how easily tyranny could flow from one preeminent branch of government.
      Your argument fails because they had the example of a parliamentary system which gives the Legislature sway over the other branches and chose not to adopt one.

    2. I am certain that you felt differently when Obama was President and Congress was trying to investigate Benghazi, Fast and Furious, the IRS fiasco, etc.

        1. You could have told us you were the contagion of Washington State. We already knew you are the contagion of Turley’s blog

          Washington state confirms 2 new coronavirus cases, 1 of unknown origin


      1. Pffft. Those are based on the presumption of sane and thoughtful political leaders. That hasnt existed since the 1960s

        Just nuke ‘em all. Thatll save the rest of us from the threat that Democrats and Republicans have become to the republic

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