House can sue to force former White House counsel Donald McGahn to comply with subpoena – The Washington Post

The “effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary,” Judge Judith W. Rogers wrote for the majority.

The decision is a legal victory for House Democrats, but the ruling does not mean that McGahn will immediately appear on Capitol Hill. The court sent the case back to the initial three-judge panel, which had ruled against the House, to consider McGahn’s other challenges to the subpoena. The timeline makes it unlikely that the case will be resolved before Congress adjourns in January and the subpoena expires.

The opinion also cleared the way for a second House lawsuit, finding that lawmakers are not barred from going to court to challenge the Trump administration to block the diversion of billions of dollars to build the president’s signature southern border wall.

House Speaker Nancy Pelosi (D-Calif.) said the court rejected the president’s “outrageous claim that Congress cannot enforce its subpoenas.”

“The House will continue to pursue justice until Don McGahn and all administration officials comply with our rightfully-issued subpoenas,” Pelosi said in a statement. “We remain committed to our oversight responsibilities and to our nation’s fundamental principle that no one is above the law – not even the President.”

Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), whose panel issued the subpoena, said the ruling was consistent with a pair of Supreme Court decisions in July rejecting the president’s claims of sweeping immunity from investigations by a state prosecutor and Congress.

In response to the rulings, Justice Department spokeswoman Kerri Kupec said, “While we strongly disagree with the standing ruling in McGahn, the en banc court properly recognized that we have additional threshold grounds for dismissal of both cases, and we intend to vigorously press those arguments before the panels hearing those cases.”

Judges Thomas B. Griffith and Karen LeCraft Henderson dissented in both cases, emphasizing that courts should not intervene in political disputes.

“Who benefits from today’s decision? Not Congress. The majority’s ruling will supplant negotiation with litigation, making it harder for Congress to secure the information it needs,” Griffith wrote.

Because the majority failed to decide the merits of the case, the chances that McGahn testifies “anytime soon are vanishingly slim,” he noted.

“The federal courts won’t benefit, either,” Griffith added. “The majority’s decision will compel us to referee an interminable series of interbranch disputes, politicizing the Judiciary by repeatedly forcing us to take sides between the branches.”

The majority rejected that reasoning, saying ruling against the House would dramatically weaken Congress’s leverage in future battles for information from the executive branch.

“Without the possibility of enforcement of a subpoena issued by a House of Congress, the executive branch faces little incentive to reach a negotiated agreement in an informational dispute,” Rogers wrote. “Indeed, the threat of a subpoena enforcement lawsuit may be an essential tool in keeping the executive branch at the negotiating table.”

Judges Gregory Katsas and Neomi Rao did not participate in either case. Both were nominated by Trump and previously held high-level positions in his administration.

House Democrats initially subpoenaed McGahn before the start of the chamber’s formal impeachment investigation of the president that ended with Trump’s acquittal in the Senate in February. But House lawyers told the court that McGahn’s testimony is still relevant to ongoing oversight and will help the Judiciary Committee determine whether Trump “committed impeachable offenses” in Robert S. Mueller III’s special counsel investigation.

Trump directed McGahn to disregard the subpoena, saying key presidential advisers cannot be forced to answer questions or turn over documents and are “absolutely immune from compelled congressional testimony.”

The Justice Department urged the court not to choose sides in a political battle and said lawmakers have other tools to compel the White House to cooperate.

The case reached the full appeals court after a divided three-judge panel in February said courts have no power to resolve a “bitter political showdown” over the House Judiciary Committee’s subpoena for testimony from McGahn.

The full court was reviewing a decision from U.S. District Judge Ketanji Brown Jackson, who rejected the White House’s claim that top advisers like McGahn are “absolutely immune” and the assertion that the president can overrule current or former aides’ “own will to testify.”

If McGahn wanted to refuse to testify — by invoking executive privilege, for instance — the judge said he had to do so in person, and question by question.

In reversing the panel decision Friday, the majority cited a long tradition of presidential cooperation with Congress in turning over documents and providing testimony. That history is in stark contrast, the court said, to the “apparently categorical direction by President Trump that no member of the Executive Branch shall cooperate with the Committee’s impeachment investigation.”

The administration’s disregard for constitutional obligations “likely explains the infrequency of subpoena enforcement lawsuits such as the present one,” wrote Rogers, who was nominated to the bench by President Clinton.

In the second matter considered by the full D.C. Circuit in April, the court cited its decision in McGahn’s case and said “there is no general bar” against House lawsuits in “purely interbranch disputes.”

The appeals court was reviewing U.S. District Court Judge Trevor N. McFadden’s dismissal of the House lawsuit last June. McFadden agreed with the Justice Department that the House lacked legal grounds to sue to enforce Congress’s appropriations power.

The court’s brief order on Friday does not resolve the merits of the case but allows the lawsuit to proceed and sends it back to a three-judge panel for further consideration.

The same two judges, Henderson and Griffith, dissented in the border wall decision.

“After two sets of briefing, two merits arguments and months of consideration, there is no reason that the parties [in the border wall case] should continue to languish without a definitive answer from this court,” wrote Henderson, a nominee of President George H.W. Bush.

Remanding the border case will likely delay final judgment for at least another year, inviting further lawsuits by Congress “to the detriment of both Congress and the Judiciary,” wrote Griffith, a nominee of President George W. Bush.

The development in the D.C. Circuit follows the Supreme Court’s order in a separate case last week rejecting an effort by environmentalists to stop ongoing construction of parts of the president’s border wall.

John Wagner contributed to this report.