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: