House rebuked

Dems lose subpoena-enforce appeal

A federal appeals court panel Monday ruled that the House of Representatives can’t use courts to enforce subpoenas for testimony, giving a win to the Trump administration in a standoff with Democrats.

The decision is a blow to House Judiciary Committee Democrats seeking to force testimony from former White House counsel Don McGahn, originally as part of last year’s impeachment inquiry. But it may not be the final word.

The three-judge panel split 2-1, with the majority finding there’s no statute allowing judicial review of subpoenas, although Congress “remains free to enact a statute that makes the House’s requests for information judicially enforceable.”

The same panel ruled in February that the committee lacked standing to sue — a finding overturned by the full Court of Appeals for the Washington, DC, Circuit on Aug. 7. It’s possible the full appeals court will again overturn the panel’s decision.

McGahn (inset) followed President Trump’s order not to comply with the subpoena, citing executive privilege. In both decisions, Judges Thomas Griffith and Karen Henderson were in the majority and Judge Judith Rogers dissented. Griffith and Henderson ruled in February that the enforcement of subpoenas was a political issue not suited for judicial review.

The appeals process began with a major win for Democrats in a November ruling from District Judge Ketanji Brown Jackson, who ordered McGahn to testify.

Attorneys for the Democratic-controlled committee argued in January that McGahn’s testimony might be valuable in a second round of impeachment efforts.

“Yes, that is on the table. There’s no doubt,” committee attorney Doug Letter said.

McGahn left the White House in 2018, long before Trump pressured Ukraine to investigate Joe Biden, for which he was impeached. Democrats want to grill McGahn on Russia.

Griffith warned in February, however, that the appeals court would see a tremendous uptick in lawsuits if it became the referee in such disputes.

He pointed to historical practice of courts not stepping between Congress and the executive branch. Tools such as withholding funds, stalling nominations and finding officials in contempt can be used to coerce the executive branch.

“If we order McGahn to testify, what happens next? McGahn, compelled to appear, asserts executive privilege in response to the Committee’s questions. The Committee finds those assertions baseless. In that case, the Committee assures us, it would come right back to court to make McGahn talk,” Griffith wrote in February. “The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’ lawyers to make the trip often.”