Below is my column on the catastrophic loss of Congress in the recent decision in favor of the Trump Administration over the testimony of former White House Counsel Don McGahn. This loss is breathtaking for the House of Representatives. I was lead counsel in the litigation over Obamacare and, as part of that victory, we succeeded in getting the district court to recognize the standing of the House of Representatives. This latest decision lays waste to that precedent and eviscerates the ability of the House to enforce its subpoenas.
As I discussed earlier, some 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. 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. I do not blame the House leadership or the House General Counsel in bringing this action. This was a good case and a bad decision. It must be appealed. Since this is the D.C. Circuit, it is already impacted most cases involving the Congress so an additional adverse decision by the Supreme Court will only make it marginally worse. That is the point of hitting rock bottom.
The decision also shows why there are a variety of contentious constitutional issues that warrant judicial review. It further undermines the basis for Article II of the impeachment.
Here is the column:
The legacy of President Trump could be a matter of debate for decades. Yet victories on executive power will likely govern that legacy, and none may be more notable than the ruling in the case against Donald McGahn by the House Judiciary Committee. The District of Columbia Circuit Court sided with Trump in reversing a lower court decision and refusing to order the appearance before Congress of the former White House counsel. It is a huge victory for the White House in barring such testimony, and also a devastating loss to the authority of Congress in any such future conflicts.
I disagree with the decision and believe not only that Congress has a right to hear from McGahn but that federal courts should protect that right. The decision undermines not only the authority of Congress but also half of the House case against Trump based on its second impeachment article of obstruction of justice. I disagree because, as a Madisonian scholar and former lead counsel for the House of Representatives, I have long favored the authority of Congress in seeking such key witnesses and evidence. I believe this opinion sweeps far too broadly in effectively removing courts from serious interbranch disputes on oversight or impeachment matters.
The court dismisses such conflicts as an “intramural disagreement” and declares that, if it ruled otherwise in this dispute, it would put itself on a slippery slope of constant conflict between the other two branches of government. However, that is precisely where the courts should be, and removing the courts from these disputes will only weaken that system. The new opinion is fractured on its rationale and likely to be appealed.
In the decision, only Judge Thomas Griffith adopted the most sweeping view that federal courts should play no role in such disputes between the branches. Judge Karen LeCraft Henderson stated that Congress can go to court but lacked standing in this case. She correctly rejected immunity claims made by McGahn and found that, while “the executive branch received its requested relief, it is difficult to identify any winners here.” The third member of the appeals panel, Judge Judith Rogers, supported greater access of Congress to the courts, a view that I generally share.
The opinion cites impeachment and criminal contempt among the various tools that Congress could use to force concessions on witness demands. However, it casts a long shadow over the basis for the second article of the Trump impeachment. It notes that presidents have withheld evidence from Congress in such disputes throughout history, with similarly defiant positions taken by numerous commanders in chief from President Adams all the way to President Reagan. Furthermore, the court cites the “Fast and Furious” investigation, in which President Obama made equally sweeping claims to withhold evidence from Congress, a position that a judge later said would negate the important foundation of the separation of powers.
During my testimony before the House Judiciary Committee, I strongly discouraged the panel from rushing its impeachment, the shortest such investigation of a president in history, and I specifically objected to the second article as premature and abusive. I encouraged the panel to wait until this spring and to subpoena witnesses like former national security adviser John Bolton. Otherwise, the House effectively would impeach Trump for going to the courts rather than simply yielding to Congress.
President Nixon and President Clinton both were able to litigate such questions all the way to the Supreme Court before facing impeachment. Under the position of the House, it can first set an artificially short period to produce witnesses or evidence, and then impeach any president who seeks judicial review. Not only was the McGahn case pending in court but the Supreme Court had accepted another case on the authority to refuse such subpoenas. The House refused to wait, and Speaker Nancy Pelosi insisted on impeaching Trump by the artificial deadline of Christmas.
This appeals court decision does not mean that Trump did not obstruct Congress. Indeed, I previously criticized the scope of his refusal to share evidence and witnesses. However, it does show that Trump not only had a valid argument in this case but ultimately prevailed in court. This was the argument that lead House impeachment manager Adam Schiff and others mocked during the Senate trial. The point is that judges of good faith can disagree on such questions. While I disagree with this decision, there is value in allowing the courts to be heard before seeking the removal of a president for failing to comply with demands from Congress. It is not required by the Constitution, however, it is the difference between an incomplete versus a compelling and successful impeachment article.
Some of the language of the decision undercuts the rush to impeach. It describes these conflicts as a standard component of how the branches work and the Constitution as contemplating negotiation, accommodation, and sometimes retaliation. It does not contemplate a categorical demand followed by a rushed impeachment. By refusing to intervene, the appeals court said the judiciary seeks to allow such disagreements to “play out” toward compromise, as they have countless times before in other cases.
This opinion could of course be spun as meaning that the House did not lose anything by not waiting for the courts, since this court refused to intervene. However, that is not the point. First, two out of three judges do not support a sweeping denial of judicial review. Second, Trump prevailed in this dispute on an argument that was ridiculed by the House managers in a case cited in the impeachment. That shows these disputes remain mired in uncertainty even on the courts. Impeachment requires clarity, and this decision shows that the White House had valid countervailing arguments. The court noted for Trump, given the “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” otherwise.
The decision in this case marks one of the greatest losses in the history of the House of Representatives. If it stands, it will threaten the ability of all committees to enforce oversight authority, and the House, having hit rock bottom, has no alternative but to appeal. Whatever the outcome will be in the litigation going forward, the lower chamber should certainly take a second to contemplate the recent past. Congress was wrong in rushing to impeach the president over these evidentiary disputes, and its second article was both premature and presumptuous in claiming obstruction.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump. He was also lead counsel representing the United States House of Representatives in litigation over Obamacare.