DEMOCRATS DENIED in McGahn subpoena suit.
Court says House not yet empowered
A U.S. appeals court threw out a lawsuit by congressional Democrats seeking to subpoena former White House counsel Don McGahn, ruling the House of Representatives isn’t permitted to bring such legal actions until a law is passed specifically allowing it.
The ruling prolongs a dispute that seemed resolved in August when the same appeals court affirmed that Congress has legal standing to sue the executive branch, and that the judicial branch has authority to resolve such disputes.
While that standing gets Congress through the courthouse door, it doesn’t keep it there, a three-judge panel wrote Monday. Congress has twice declined to authorize itself to file lawsuits like the one at the center of the case, including by granting “an express cause of action to the Senate — but not to the House,” the judges wrote.
“We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit,” according to the 2-1 opinion written by Judge Thomas Griffith, a George W. Bush appointee.
House Democrats are likely to seek a rehearing before a full panel of judges in the Washington court. Such a rehearing was used to secure the House’s earlier victory on the issue of standing.
House Judiciary Chairman Jerrold Nadler, D-N.Y., and committee officials are reviewing the decision, said a spokesman, Daniel Schwartz. A spokesman for Speaker Nancy Pelosi, D-Calif., said a statement will be released shortly.
“McGahn’s contention that he is entitled to absolute immunity from the Committee’s subpoena lacks merit,” Judge Judith Rogers, a Ronald Reagan appointee, said in a dissenting opinion.
Rogers said Congress has an “implied” cause of action under the Constitution, as well as under the federal Declaratory Judgment Act.
The earlier 7-2 ruling was a blow to the Trump administration’s assertion of far-reaching protections against external oversight. In a separate case, the U.S. Supreme Court ruled in July that the president is not immune to subpoenas related to state criminal investigations.
The lawsuit was triggered last year when the president said his aides were “absolutely immune” from congressional subpoenas, hobbling the House’s efforts to get testimony during the Russia probe. The judiciary committee then sued to compel testimony by McGahn.
The administration had argued that the House has other tools at its disposal to deal with disputes over appropriations or subpoenas, including holding witnesses in contempt, refusing to cooperate with a president’s legislative agenda, shutting down the government and even starting impeachment proceedings. It said allowing such congressional lawsuits would improperly politicize the judiciary and invite a flood of future litigation.