Thursday, 25 February, 2021


Appeals court deals blow to Democrats' bid for Don McGahn testimony

Don Mc Gahn wearing a suit and tie talking on a cell phone Former White House counsel Don Mc Gahn sits with Senate Majority Leader Mitch Mc Connell while speaking to a gathering of the Federalist Society at the State Capitol in Frankfort Appeals Court Finds Another Way To Stymie House's McGahn Subpoena
Bennie Garza | 03 September, 2020, 02:11

A US appeals court on Monday, in a victory for the Trump administration, ordered the dismissal of a lawsuit filed by a Democratic-led House of Representatives panel seeking to enforce a subpoena issued to former White House Counsel Donald McGahn.

"Because the Committee lacks a cause of action to enforce its subpoena, this lawsuit must be dismissed", the ruling said.

"It remanded the case to this three-judge panel to consider the remaining issues, including whether the Committee has a cause of action to enforce its subpoena and, if so, whether McGahn must testify despite the Executive Branch's assertion of absolute testimonial immunity". On behalf of the majority, judge Thomas Griffith-who is retiring from the court effective September 1-wrote that the decision does not preclude Congress "from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit".

The powers of Congress enumerated in Article I of the Constitution "imply not only a right to information but also a right to seek judicial enforcement of its subpoena", Rogers wrote.

The latest decision comes weeks after the full appeals court rejected the panel's initial ruling that would have ended the court fight over whether McGahn must testify before the House Judiciary Committee as part of its investigation of potential obstruction of justice by President Donald Trump during special counsel Robert Mueller's Russian Federation investigation.

The House Judiciary Committee can now request another hearing before the entire circuit of the D.C. appeals court, which would first have to grant the request before rehearing the case.

Griffith wrote that the full Congress - and not just one chamber - can enact a statute that makes House requests for information judicially enforceable. This prompted House Democrats to subsequently sue McGahn in August 2019 in an attempt to enforce the subpoena.

As it turned out, all three were on the three-judge panel to which the full court returned the case.

"The Constitution leaves to Congress-and not to the federal courts-the authority to craft rights and remedies in our constitutional democracy", Monday's opinion reads, explaining that Congress has yet to codify a legal avenue for federal courts to settle these disputes. Still they called the decision important, particularly if it is upheld and a future Congress enacts a law authorizing such House suits.

House Democrats subpoenaed McGahn before last summer's formal impeachment investigation of Trump that ended with Senate acquittal in February.

The appeals followed a decision from U.S. District Judge Ketanji Brown Jackson, who rejected the White House's blanket claim of immunity, finding that witnesses instead can invoke executive privilege in person, question by question, after answering subpoenas.

Incredibly, the appeals court panel has yet to even rule on the central claim the administration was making in ordering that McGahn not comply with the subpoena.

She said Congress needs access to information to perform its constitutional duties and that the Supreme Court had acknowledged "the essentiality of information to the effective functioning of Congress".

Court cases over the testimony of presidential advisers are rare because the White House and Congress typically reach an agreement.

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