D.C. Circuit Rejects Key Challenge Of President Trump To McGahn Subpoena

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.

108 thoughts on “D.C. Circuit Rejects Key Challenge Of President Trump To McGahn Subpoena”

  1. At this point in American judicial history, a ruling by the DC District Court only indicates judicial obedience to what the left sees as the most benefic judicial outcome for their cause, to wit: Get Trump. Any relation to the law is purely coincidental.

  2. Apparently Biden’s former stenographer has said Biden’s mental capacity is going down rapidly, not the man he once was, which isn’t saying much.

    More of this and someone will have to be on hand to wipe his drool during press conferences, if any.

    1. Now even MSNBC has hinted that the Biden thing lacks the dynamism of a real presidential campaign.

      No kidding! He pops out of his hole like a confused cuckoo, then pops down and slams the lid shut again.

    2. Wow, Young, it’s good of you to point that out. Because with Trump saying and tweeting crazy sh_t on a daily basis, it’s easy to think of Biden as the sharper candidate.

      1. You’ve been fooled. On his apparent good days Biden has a ventriloquist beside him. Not sure yet how they make has jaw move up and down, strings maybe.

  3. Meanwhile, Barr is trying to further politicize the DOJ on Trump’s behalf:

    “The U.S. Justice Department is seeking to take over the defense of President Donald Trump in a defamation suit brought by advice columnist E. Jean Carroll, who claims Trump raped her two decades ago.
    “In a court filing Tuesday, the Justice Department said Trump was acting “within the scope” of his job as president when he said Carroll lied about the incident, prompting her lawsuit. The U.S. also moved the case to Manhattan federal court from a New York state court, where a judge last month denied his request to stall the suit.
    “The move could further delay a suit that was to soon have entered the evidence-gathering phase. Carroll is seeking to take the president’s deposition and force him to provide a DNA sample from a dress she claims she was wearing at the time of the alleged attack. It also comes as the Trump campaign has reportedly been facing a cash crunch due in part to its spending on legal fees in suits against the president. …”
    https://www.inquirer.com/politics/nation/justice-department-trump-lawsuit-jean-carroll-20200908.html

    Or if you prefer the Associated Press:
    “The U.S. Justice Department is seeking to take over President Donald Trump’s defense in a defamation lawsuit from a writer who accused him of rape, and federal lawyers asked a court Tuesday to allow a move that could put the American people on the hook for any money she might be awarded. After New York state courts turned down Trump’s request to delay E. Jean Carroll’s suit, Justice Department lawyers filed court papers Tuesday aiming to shift the case into federal court and to substitute the U.S. for Trump as the defendant. That means the federal government, rather than Trump himself, might have to pay damages if any are awarded. …”
    https://apnews.com/01d363af809beb6cf32a92598313d2a5

    The DOJ has no business defending Trump on this, and if he’s guilty, the damages should come out of his pockets, not ours. I hope the judge quickly rules against them.

  4. Justice Department Replacing Trump’s Private Lawyers In Sexual Misconduct Suit

    In a highly unusual legal maneuver, the Department of Justice moved on Tuesday to replace President Trump’s private lawyers and defend him against a defamation lawsuit brought in state court by the author E. Jean Carroll, who has accused him of raping her in a Manhattan department store in the 1990s.

    Lawyers for the Justice Department said in court papers that Mr. Trump was acting in his official capacity as president when he denied ever knowing Ms. Carroll.

    Citing a law called the Federal Tort Claims Act, the lawyers asserted the right to take the case from Mr. Trump’s private lawyers and move the matter from state court to federal court. The tort claims act gives employees of the federal government immunity from lawsuits, though legal experts say that it has rarely, if ever, been used to protect a president.

    Ms. Carroll’s lawyer said in a statement issued Tuesday evening that the move by the Justice Department to intervene in the case was a “shocking” attempt to bring the power of the United States government to bear on a private legal matter.

    “Trump’s effort to wield the power of the U.S. government to evade responsibility for his private misconduct is without precedent,” the lawyer, Roberta A. Kaplan, said in the statement, “and shows even more starkly how far he is willing to go to prevent the truth from coming out.”

    The Justice Department’s motion came only a month after a state judge in New York issued a ruling that potentially opened the door to Mr. Trump being deposed in the case before the election.

    Ms. Carroll, a writer, sued Mr. Trump last November, claiming that he lied by publicly denying he had ever met her. In a memoir published last summer, she maintained that Mr. Trump sexually assaulted her nearly 30 years ago in a dressing room at Bergdorf Goodman.

    Full Article: “Justice Dept. Intervenes To Help Trump In E. Jean Carroll Lawsuit”

    Today’s New York Times

  5. Election investigations of absentee ballots and double voting in southeast Georgia underway

    https://www.fox5atlanta.com/news/election-investigations-of-absentee-ballots-and-double-voting-in-southeast-georgia-underway

    ATLANTA – The Georgia Secretary of State and Long County Board of Elections and Registration have opened investigations into allegations of double voting and absentee ballot fraud in Long County. Those allegations were first reported by our FOX 5 I-Team.

    A losing Probate Judge candidate claims some citizens voted twice and someone turned in unsigned absentee ballots that were counted.

    Our I-Team tracked down one of the people who voted twice.

    Hamilton Evans lives and votes in Ludowici. He admits, up front, and without reservation – he voted twice in the June 9th election.

    “To prove that there is a flaw in the system. It’s that simple,” said Evans.

    Hamilton Evans says he voted twice to test the system. “The system shouldn’t have worked that way. It should have right then told me no, you’ve already voted. It don’t; It let me vote twice.”

    Voting records obtained by the I-Team show Evans voted once during the early voting period and a second time when he took his wife to vote on election day.

    While waiting for his wife at this voting precinct, he says a volunteer asked for his ID and gave him a ballot.

    Evans voted again and immediately left to tell the sheriff why he voted twice.

    “The reason I done that was just to prove a point. It’s not set upright. If I did it, how many other people did it,” said Evans.

    Attorney Jake Evans (not related to Hamilton Evans) has filed a legal challenge on behalf of Long County Probate Judge Bobby Smith. Smith lost by 9 votes.

    Evans is now updating that challenge, with more voter information, claiming that at “least seven people voted twice in the election.

    “The very fact that you could vote twice in an election is very disturbing,” said attorney Jake Evans.
    Attorney Evans also claims in his election challenge” seven people” didn’t sign their absentee ballot as required by law, and “numerous people” voted illegally by absentee ballot because someone not allowed by law requested “the ballot on the voter’s behalf.”

    “This case confirms, mail-in ballot fraud is a real thing. It is happening,” said Evans.

    The I-Team examined Long County voting records on our own and found in at least 6 instances, of citizens voting twice. And not just in one precinct. It happened in four different precincts.

    “I have no idea how people voted twice. I’ve never tried it, I’ve never wanted to try it, I guess that’s why it blows my mind,” said Probate Judge Bobby Smith.

    1. I hope that anyone who voted twice is charged with voter fraud.

      Meanwhile, “State officials in Georgia are alleged to have wrongfully purged approximately 200,000 people from its voter rolls in 2019, according to a new report commissioned by the American Civil Liberties Union’s (ACLU) Georgia chapter” (https://thehill.com/homenews/state-watch/514813-georgia-accused-of-wrongfully-purging-nearly-200000-from-voter-rolls). I wish those who are concerned about voter fraud were even half as concerned with the disenfranchisement of legal voters.

  6. “Georgia Secretary of State: 58% of Double Voters in June Primary Were Democrats”

    The Georgia Secretary of State said on Tuesday that 1,000 voters cast ballots twice in the state’s June primary, and 58 percent of them were cast for Democrats.

    In Georgia, a voter must request a specific party ballot in the primary election.

    “While the investigation is still ongoing, initial results show that of the partisan ballots at issue, approximately 58% were Democratic ballots,” a spokesman for Georgia Secretary of State Brad Raffensperger told Breitbart News.

    Raffensperger’s office announced voting twice is a felony and those accused would be prosecuted to the fullest extent of the law.

    The Secretary of State said the voters returned absentee ballots prior to the election and then showed up at their polling location on Election Day.

    Many double-voters are able to be stopped, but county election officials “weren’t able to catch everyone,” the Atlanta Journal Constitution reported.

    “A double voter knows exactly what they’re doing, diluting the votes of each and every voter that follows the law,” Raffensperger said.

    “Those that make the choice to game the system are breaking the law. And as secretary of state, I will not tolerate it.”

    According to the paper, 150,000 residents requested absentee ballots, but then attempted to vote in person because the ballot never arrived or they changed their minds and decided to vote in person instead.

    Most of them were intercepted, but 1,000 double-voted.

    Raffensperger said in past elections, absentee ballots accounted for five percent of all ballots. In the June primary election, 50 percent of votes were mailed in.

    Breitbart

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