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House suit seeking McGahn testimony tossed by appeals court

The opinion said Congress has other powers to compel McGahn's testimony, and shouldn't have to drag the courts into it

Former White House counsel Don McGahn, left, attends the Senate Judiciary Committee confirmation hearing for Supreme Court nominee Brett Kavanaugh in 2018.  The D.C. Circuit Court ordered dismissal of a suit Friday from the House Judiciary Committee attempting to force McGahn to testify.
Former White House counsel Don McGahn, left, attends the Senate Judiciary Committee confirmation hearing for Supreme Court nominee Brett Kavanaugh in 2018. The D.C. Circuit Court ordered dismissal of a suit Friday from the House Judiciary Committee attempting to force McGahn to testify. (CQ Roll Call)

A federal appeals court in Washington dealt a blow to congressional oversight power Friday, throwing out a House Judiciary Committee lawsuit to force former White House Counsel Don McGahn to testify as part of a probe into the actions of President Donald Trump.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 ruling, declined to rule on whether McGahn had to honor a committee subpoena or if the close presidential adviser enjoys “absolute immunity” from such testimony.

[House contends it still needs court help to get Mueller info]

Instead, the majority found that federal courts had no role to play in such a clash between the political branches, and Congress can instead use “a series of political tools to bring the Executive Branch to heel.”

Those “ample yet imperfect tools” include holding officers in contempt, withholding appropriations, refusing to confirm the president’s nominees, harnessing public opinion, delaying or derailing the president’s legislative agenda, or impeaching recalcitrant officers, the majority wrote.

“And Congress can wield these political weapons without dragging judges into the fray,” Judge Thomas B. Griffith, a former Senate legal counsel who represented the Senate in litigation and advised leadership on investigations, wrote for the majority.

The House filed the lawsuit to force McGahn to testify about episodes from former special counsel Robert S. Mueller III’s report on Russian interference in the 2016 presidential election and Trump’s moves to try to stymie that investigation.

Some House Democrats pointed to the McGahn case as the test case for enforcing more subpoenas in their oversight investigations into the Trump administration, which culminated in December with the impeachment of Trump for abuse of power and obstruction of Congress.

The ruling, if it stands, would mean Congress might have lost the threat of filing a lawsuit to enforce a subpoena against the executive branch.

Griffith, a George W. Bush appointee, wrote that ruling on the McGahn case would open the door to having judges settle other political disputes. “The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often,” Griffith wrote.

And federal courts with unelected judges would replace the political process that allows negotiation between Congress and the executive branch, he asserted.

“Sometimes these tools will yield fewer concessions than Congress might wish, but the remedy for that perceived wrong is in politics or at the ballot box,” Griffith wrote.

“Letting political fights play out in the political branches might seem messy or impractical, but democracy can be a messy business, and federal courts are ill-equipped to micromanage sprawling and evolving interbranch information disputes,” Griffith wrote.

In ruling against the House, the court cited Supreme Court precedents about the right of lawmakers to bring lawsuits, and rejected the House argument that it suffered an “institutional injury” that gives it standing.

The House argued that it had the “sole Power of Impeachment” and a broad power to investigate, and McGahn’s refusal to appear impedes an investigation that harmed its right to compel information.

Judge Judith Rogers, in a dissent, lamented the fallout that the ruling would have when subpoena enforcement is a traditional and commonplace function of federal courts.

“The House comes to the court in light of the President’s blanket and unprecedented order that no member of the Executive Branch shall comply with the subpoena duly issued by an authorized House Committee,” Rogers, a Bill Clinton appointee, wrote.

“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,” Rogers said.

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