Former White House counsel Don McGahn.
Alex Wong/Getty Images
A three-judge panel of the federal appeals court for the District of Columbia Circuit on Friday dismissed the U.S. House of Representatives’ lawsuit that had sought testimony from former White House Counsel Don McGahn. McGahn had been cited in several portions of the Mueller Report as a witness to obstructive acts by the president. In the 2-1 decision, authored by Judge Thomas Griffith, the panel determined that the judiciary has no role to play in a political dispute between the House Judiciary Committee and the White House. If that ruling is allowed to stand, it will mean that going forward, disputes between Congress and the White House are to be resolved in favor of the White House. The courts shall remain neutral, even as they decide not to decide this point.
When McGahn was subpoenaed in April 2019 by the House Judiciary Committee, President Donald Trump instructed McGahn to refuse on the theory that White House advisers, including former advisers, enjoy “absolute testimonial immunity” from compelled congressional testimony. McGahn refused to testify. In August the Committee sued McGahn in federal court, arguing that he “enjoys no absolute immunity from appearing before the Judiciary Committee.” In a 120-page opinion last November, District Court Judge Ketanji Brown Jackson rejected the Justice Department’s arguments for sweeping immunity by noting tartly that “presidents are not kings.”
Brown Jackson further held that the DOJ’s argument that the constitutional system of checks and balances “is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the Legislature’s interest in gathering truthful information, such that current and former senior-level presidential aides should be always and forever immune from answering probing questions, is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together.” She wrote that if witnesses connected to the Administration wanted to invoke privilege, they still had to show up when called and invoke it, issue by issue. But they were not free to say that the President could assert blanket immunity for everyone, always as he saw fit.
On Friday, without addressing the scope of the “absolute immunity” claims, or of the DOJ’s that Article III precludes a chamber of Congress from ever enforcing its subpoena in civil litigation, Judge Griffith, a George W. Bush appointee, joined by Judge Karen Henderson, a George H.W. Bush appointee, concluded that federal courts in fact have no role to play in disputes between the political branches: “The Committee’s suit asks us to settle a dispute that we have no authority to resolve. The Constitution does not vest federal courts with some ‘amorphous general supervision of the operations of government,’” he wrote. He added that “the Committee’s dispute with the Executive Branch is unfit for judicial resolution because it has no bearing on the ‘rights of individuals’ or some entity beyond the federal government.” Because, the majority finds, “interbranch disputes are deeply political and often quite partisan,” it would look bad for the judiciary to involve itself. So the tie goes to the runner, or in this case, the president.
In any event, writes Griffith, Congress has myriad tools to enforce a subpoena. “Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees, harness public opinion, delay or derail the President’s legislative agenda, or impeach recalcitrant officers,” he suggested.
It bears mentioning that throughout the impeachment trial the president’s attorneys insisted that subpoenas for executive branch witnesses should have been handled in court. And the court now claims the disputes are non-justiciable.
Despite the fact that the McGahn subpoena issue was theoretically resolved when he failed to testify in connection to the impeachment, House lawyers argued in January that the issue was still live as McGahn’s testimony was still critical to “ongoing inquiry into the president’s conduct,” and suggested that further articles of impeachment were being considered.
In a lengthy dissent, Judge Judith Rogers, a Bill Clinton appointee, called the immunity claim “unprecedented,” warning, “The court removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties.”
Under the guise of staying out of it, the appeals court just blessed the White House’s claim that it is beyond the reach of Congress – not just for McGahn’s subpoena, but for any future such attempts at oversight. As Judge Rogers put it, “On the one hand, it is true that the judiciary can disrupt the delicate balance of powers between the Branches when it intervenes in a dispute in which it ought not. On the other hand, it is also true that the judiciary can upset that careful equilibrium when it dismisses a suit that it ought to decide.”
By refusing the invitation to check an imperial executive, the panel just established the ongoing reality of an imperial executive. The decision can still be appealed to the full court or the Supreme Court. But barring a reversal, Congress may need to get creative. As an alternative, Judge Griffith suggested Congress order the Sergeant-at-Arms to arrest and detain their desired witnesses. “The House has reasonably exhibited its desire not to engage in a personal arrest of, or physical confrontation with, an Executive Branch official when judicial process is available,” Rogers pointed out. It used to be the point to avoid jailing White House officials, Rogers noted: “The infrequency with which Congress has detained an Executive Branch official — twice in the country’s history, and not since 1916 … attests to the impracticability of that remedy.” But we’re in a new era. If impeachment is better than the courts and that the courts are preferable to impeachment, maybe Congress has no choice but to arrest its way out of this bind.
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