In a serious blow to the oversight efforts of House Democrats, the U.S. Court of Appeals for the D.C. Circuit ruled Friday that former White House counsel Don McGahn can defy a subpoena to testify before Congress.
Judge Thomas Griffith wrote the opinion for a three-judge panel that divided two to one. Griffith said the case presented a political conflict between two branches of government that the judiciary has no power to resolve.
"If we throw ourselves into ‘a power contest nearly at the height of its political tension,’ we risk seeming less like neutral magistrates and more like pawns on politicians’ chess boards," the decision reads. "In this case, the dangers of judicial involvement are particularly stark. Few cases could so concretely present a direct clash between the political branches."
The House Judiciary Committee issued a subpoena for McGahn’s testimony in April 2019. The panel sought his testimony in connection with former special counsel Robert Mueller’s report, saying McGahn was a critical witness to alleged instances of obstruction of justice on Trump’s part. The White House instructed McGahn not to cooperate with the subpoena, precipitating the legal battle with House Democrats.
U.S. District Judge Kentaji Brown Jackson ordered McGahn to comply with the subpoena in November 2019, rejecting administration arguments that the president’s senior aides are absolutely immune from congressionally compelled testimony.
In Friday’s decision, Griffith said the lower court ruling would force judges to supervise co-equal branches of government and set rules governing congressional investigations, thereby turning the courts into an "ombudsman for interbranch information disputes."
"The committee’s suit asks us to settle a dispute that we have no authority to resolve," the decision reads. "The Constitution does not vest federal courts with some ‘amorphous general supervision of the operations of government.’"
The Department of Justice applauded the D.C. Circuit for dismissing the House’s "unprecedented" lawsuit.
"We are extremely pleased with today’s historic ruling from the D.C. Circuit recognizing that the House of Representatives cannot invoke the power of the courts in its political disputes with the executive branch," a DOJ spokeswoman said. "Suits like this one are without precedent in our nation’s history and are inconsistent with the Constitution’s design. The D.C. Circuit’s cogent opinion affirms this fundamental principle."
Elsewhere in the decision, Griffith said House Democrats repeatedly undermined their own legal arguments.
For example, Griffith noted that House Democrats cited the administration’s litigating position in the McGahn case in support of the second article of impeachment, obstruction of Congress. That’s more evidence that Friday’s dispute is "a bitter political showdown" unfit for the courts, Griffith wrote.
Griffith also observed that the House issued subpoenas to Attorney General William Barr and Commerce Secretary Wilbur Ross just one day after Jackson found the House could compel McGahn’s testimony. Griffith said those actions showed that a decision for the House could ensnare the courts in future disputes between the president and Congress over enforcement of subpoenas.
"The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often," the decision reads.
The court distinguished Friday’s decision from related cases involving subpoenas and the separation of powers. Griffith said the decision does not disturb a 2019 decision finding Congress can enforce a subpoena for Trump’s financial records, since those records are held by a private third party. Nor does the ruling dispute that courts can weigh subpoenas against the president arising out of criminal prosecutions, as occurred during the Watergate era.
In dissent, Judge Judith Rogers stressed that the McGahn subpoena was relevant to Congress’s since-concluded impeachment inquiry. Rogers said Friday’s decision "assures future presidential stonewalling of Congress."
"In the context of impeachment, when the accuracy and thoroughness of the investigation may well determine whether the president remains in office, the House’s need for information is at its zenith," Rogers wrote.
Friday’s decision comes one month before the Supreme Court will decide whether Congress can enforce subpoenas for President Donald Trump’s financial records.
The decision can be appealed to the full D.C. Circuit or to the Supreme Court. The case is No. 19-5331 House Judiciary Committee v. Donald McGahn.