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Congress Hits Rock Bottom With Ruling In McGahn Case

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.

120 thoughts on “Congress Hits Rock Bottom With Ruling In McGahn Case”

  2. Turley says: “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”

    Come on, Turley, you absolutely know better. Trump could care less about the “relative positions of the Executive and Legislative branches”. Trump was doing what he always does: exactly as he pleases. He refused to cooperate with Mueller and he refused to cooperate with the House investigation, and got away with it both times. HIs refusals to cooperate were not on an item-by-item basis on the grounds of privilege: it was a wholesale refusal to comply because he was guilty as hell. Everyone knows it. Plus, he has actually said he can do as he pleases. Then, after refusing to cooperate, he crows that he was vindicated! How stupid or naïve does someone need to be to not see through this slop?

    1. Natch, totally false hyperbole as usual.

      stop insulting Turley for parsing the legitimate arguments of the POTUS and the possible effect on important precedent.

      Mostly one can only fault Turley for casting pearls before swine.

    2. NUTCHACHA, suffering from acute Trump Derangement Syndrome which causes her to act out exhibiting primitive, boorish and uncivil behavior, is a communist parasite and dependent whose claim of license to murder babies, unconstitutional confiscation of other people’s money for the purpose of redistribution, “affirmative action privilege,” “free stuff,” unearned benefits and gratuitous entitlements are threatened by moral and ethical policy and patriots who support the decidedly conservative “manifest tenor” of the Constitution. Whatever will she do in an environment of freedom where merit is king and people must perform with the proper deference?

      To a parasite, the demise of a host is mortal.

    3. Natacha – Trump cooperated fully with the Mueller probe. Your nose is growing again.

  3. This guy lets his dem/communist views show he is completely off base.Congress has been trying to make the President serve at their pleasure.The president is the head of the Executive branch and in my view he is equal or should be with the congress .They have been trying to gain control over the President since Nixon .The dem/communists are hell bent on this except when the President is a dem/communist then everything is just peachy the double standard shows again.One rule for them and a different rule /law for everyone else.

  4. Amazing how the author argues against “executive privilege” now.
    Where, I wonder was he, when Obama and many other past Presidents used this tool?
    Oh yes. He was totally silent.

  5. I support the majority of your arguments, as well as your view of the courts role, and of the necescity for broad congressional oversite, and standing.

    At the same time the house botched this and asked for this decision, and atleast in some part deserves it.

    Parts of this decision are an effort to give the fourth amendment some teeth.

    While I broadly support the power of congress to demand what it wants from the executive.
    Any meaningful interpretation of the 4th amendment would deprive congress the power to ever supeona individuals outside of government.
    Congress is NOT a criminal investigative body.

    To a large extent that changes in the context of impeachment.
    It is reasonable to presume even broader authority for congress to issue subpeona’s in an impeachment inquiry. But that power comes at a price – one this congress ignored,

    Impeachment is a quasi criminal investigation of an individual.
    The entire process – including subpeona’s must conform closely to the rules of due process afforded in criminal investigations. This is NOT the same as an inquiry into government policy or budgeting. Congress can make its own rules – though there are still good arguments for due process, but when congress is investigating an individual – as with impeachment it must assure due process or lose powers such as subpeona power.

    Finally contra this decision regarding the enforceability of each congressional subpeona rests with the courts, this is NOT something that should be resolved by impeachment.

    The courts should enforce congressional subpeona’s of the executive branch – outside of a narrow interpretation of executive priviledge.

    BUT the Courts should require congress to afford individuals due process when congress is investigating individuals – as in impeachment, or risk losing the courts enforcement of its subpeona’s

    1. That’s not what the Constitution states about impeachment. There is no role for the Article III courts and indeed most impeachments have been of federal judges.

    2. John,
      Your post hints at something that never gets talked about; a desire for constitutionality, due process, separation of powers, and so on. How many of those elected to federal office today would you send to a constitutional convention to accomplish what the framers did 230 years ago? How many would you send to discuss independence? Who among them would sign their name committing to sacrifice their lives, fortunes and sacred honor? We have people running for president that would burn the entire thing down, just to get elected.

      I read this decision differently. The court told congress they would not enforce subpoenas to fish for evidence of unconstitutional actions. They are not to resolve policy disputes. There should be tension between the Executive and Legislative branches. Impeachment should be reserved for clear violations of the law, not as a tool to resolve ideological disputes.

      1. A High Crime is not necessarily a statutory crime. Impeachment is to encompass egregious performance of high office, not necessarily criminal.

        1. Who defines egregious performance of high office? The same people that decided the President was unfit for office in the first place? Before he even finished his oath of office? Those people? This was never about his performance in office. This was always about his egregious election to high office, his accomplishments while in office and the reality he would egregiously be reelected.

          1. The House of Representatives decides whether to impeach by a majority vote.

            1. David, what you are saying is exactly what the framers of the Constitution didn’t want. They did not want impeachment to be political. It was made political by the Democrats, a big mistake. Trump did nothing impeachable but the Democrats wanted him removed for political and policy differences. That would make the Presidency more like the Prime Minister as seen in Great Britain. That would NOT adhere to the desires of the founders or what they intended when the Constitution was written.

              1. From what I read, this is wrong, flat out wrong.

                No more here. Start over at the top.

                1. David, are you saying the framers wanted a Prime Minister instead of a President? Are you saying the framers wanted impeachment based on policy and politics?

                  I believe you would be wrong on both counts so I look forward to your explanation.

                2. No more here. Start over at the top.

                  No. The thread is here. Fix your technological problems and stop making it every one else’s.

            2. That is an overly simplistic interpretation of the power of impeachment. That’s like saying because the police have the power to use lethal force, we should not question their use of it.

              If you were to be intellectually honest, the dispute has never been about impeachable offenses. It has always been about ideological differences between political parties. Those that elected President Trump want a certain direction for this country and those that oppose him want a different direction. Long before he was elected, steps were taken to undermine (prevent) Trump from moving this country in the direction he was elected to take us.

              Democrats tout the 2018 election has a sign from the voters that they wanted the House to be in their control. That was not surprising given the wall-to-wall coverage of the Russia collusion narrative. In that regard, the Democrats like elections. However, when Mueller essentially blew up that narrative, the Democrats were faced with the stark reality of a president perceived to have been a victim and a country quite pleased with what he has accomplished during all of it. Now all of a sudden elections are not to be trusted to the voters. They might actually vote according to their own interests.

              So what do Democrats do, they conjure up something, anything that they can use to impeach the President; not because he should be impeached, but because they cannot risk a disaster for their party in the 2020 election.

              1. True 170 years ago and absolutely true today.

                The Doctrine of the Democrats
                The strange phenomenon of our times — one which will probably astound our descendants — is the doctrine based on this triple hypothesis: the total inertness of mankind, the omnipotence of the law, and the infallibility of the legislator. These three ideas form the sacred symbol of those who proclaim themselves totally democratic.

                The advocates of this doctrine also profess to be social. So far as they are democratic, they place unlimited faith in mankind. But so far as they are social, they regard mankind as little better than mud. Let us examine this contrast in greater detail.

                What is the attitude of the democrat when political rights are under discussion? How does he regard the people when a legislator is to be chosen? Ah, then it is claimed that the people have an instinctive wisdom; they are gifted with the finest perception; their will is always right; the general will cannot err; voting cannot be too universal.

                When it is time to vote, apparently the voter is not to be asked for any guarantee of his wisdom. His will and capacity to choose wisely are taken for granted. Can the people be mistaken? Are we not living in an age of enlightenment? What! are the people always to be kept on leashes? Have they not won their rights by great effort and sacrifice? Have they not given ample proof of their intelligence and wisdom? Are they not adults? Are they not capable of judging for themselves? Do they not know what is best for themselves? Is there a class or a man who would be so bold as to set himself above the people, and judge and act for them? No, no, the people are and should be free. They desire to manage their own affairs, and they shall do so.

                But when the legislator is finally elected — ah! then indeed does the tone of his speech undergo a radical change. The people are returned to passiveness, inertness, and unconsciousness; the legislator enters into omnipotence. Now it is for him to initiate, to direct, to propel, and to organize. Mankind has only to submit; the hour of despotism has struck. We now observe this fatal idea: The people who, during the election, were so wise, so moral, and so perfect, now have no tendencies whatever; or if they have any, they are tendencies that lead downward into degradation.
                http://bastiat.org/en/the_law.html

  6. Well, you ARE allowed your opinion….even when that opinion is wrong.

  7. Sounds like leakingass whining.

    Our stupid neighbors who needed a job (“the House”) abuses its power to no end but can’t figure out why the rest of us couldn’t waste a drop of a**-sweat on them if they were on fire. And that reason is, with the SCOTUS refusal to overturn the bump stock ban, we now have to get them to repeal the Hughes Act or they can all just pack their sh*t and go the F home VERY quietly.

  8. If someone can explain to attempt to explain the following, please do.

    The Q to me is why does Turley approach anything the House Demonrats do as if they give one rats behind about doing the right thing, about doing what’s best for the country? However little faith voters have in Trump, it’s crystal clear the opposition deserve only a tiny fraction of whatever voters would give Trump.

    1. Exactly. Turley pretends that Schiff and Pelosi were behaving in a serious manner. The entire scam was a joke – and Turley makes that point, in this and other articles, repeatedly – yet he continues to pretend otherwise. In essence, Turley himself, has become a joke.

  9. First observation is whataboutism, but also true – the courts never intervened when Obama claimed executive privilege during hearings on executive branch activities such as “Operation Fast and Furious”. Eric Holder defied multiple declarations that he was in contempt of Congress.

    If the Democrats are concerned about “obstruction of Congress” when Trump’s White House merely sought judicial clarification of the House’s right to demand testimony protected by executive privilege or attorney-client privilege, they’re eight years too late.

    Second observation is that the DC Circuit may be right that some “intramural” conflicts between Congress and the Presidency may not be justiciable. It’s a balance between those two branches of government which doesn’t automatically demand a judicial thumb on the scales of Justice.

  10. Oversight is one thing . . . . Usurpation of power is entirely another.

  11. Love all the Democrat House members quoting Hamilton. If Hamilton had had his way there would be no House of Representatives.

    2. Poor Stephen Colbert. He’s got lots of monologue material about that massive market downturn that’s now only useful in the staff washroom stalls.

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