The U.S. Court of Appeals for the D.C. Circuit issued a major reaffirmation of congressional authority on Friday when it ruled Friday, 7-2 that the House has legal standing to use the courts to compel McGahn to appear in response to a House Judiciary Committee subpoena. I testified repeatedly in Congress in support of the McGahn subpoena (including in the Trump impeachment hearing) and said that I believed that the White House was not just wrong on the law but would ultimately fail in this effort. I have been a long advocate of congressional standing as an academic, columnist, and a litigator, including my prior representation of the United States House of Representatives in the Obamacare litigation (where we prevailed on standing for the House). I disagreed with an earlier decision against the House. I am obviously gratified by the result in this case.
The White House can still raise other issues the appeals court left open other legal arguments against the subpoena to McGahn. That includes appearing only to refuse to answer certain questions on the basis for privilege or other objections.
However, the ruling reaffirms this critical access of the House to the courts to force compliance with its subpoenas. D.C. Circuit Judge Judith Rogers wrote “To level the grave accusation that a President may have committed ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the House must be appropriately informed. And it cannot fully inform itself without the power to compel the testimony of those who possess relevant or necessary information.”
This is the second recent set back for the White House in the D.C. Circuit. Recently, the court reversed a panel in the Michael Flynn case and sent back his case to Judge Emmet Sullivan for a final resolution of the motion to dismiss the case. While I have strongly disagreed with Sullivan’s actions (as did a couple of judges in the Circuit), I repeatedly stated that I expected the D.C. Circuit to reverse and send the matter back to Sullivan. The reversal was not an endorsement of his controversial actions but the basic principle that a trial court should be allowed to rule and complete the record before appeal. I agree with that decision and only hope that Sullivan will consider the concerns of many of us (including fellow jurists) over his prior conduct and orders in the case. These charges will be dismissed and the D.C. Circuit makes it clear that the law in overwhelming in favor of dismissal. If Judge Sullivan does not dismiss the charges, he will be reversed. The only question that remains is whether he will use this hearing for any purpose other than applying that clear legal standard.
This is a far more important ruling. It is extremely important to our constitutional system for the House to be able to enforce such subpoenas. Indeed, I hold an even broader view of legislative standing. I previously addressed this importance in testimony before Congress:
I have repeatedly testified before Congress on the single most valuable change that would counter the usurpation of legislative authority: legislative or member standing. I have long advocated the right of members to seek judicial review in alleged violations of the separation of powers. While I understand the reluctance of courts to consider political questions, a separation-based challenge is not a political but a structural question that is committed to the courts. Indeed, “standing” does not appear anywhere in the Constitution as a term or even by reference. It is a creation of the courts and has radically changed over the years to create a growing barrier for access to the courts. We now face a situation where major alleged violations of the Constitution are raised but there is no one who clearly has the standing to force judicial review.
For those who support the Madisonian democratic values, the D.C. Circuit decision is a triumph for constitutional order.