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Court extends legal fights over McGahn subpoena, border wall

The rulings likely delay any resolution to the cases past the presidential election

White House counsel Don McGahn  listens during the Senate hearing on the nomination of Brett M. Kavanaugh to be an associate justice of the Supreme Court in 2018.
White House counsel Don McGahn listens during the Senate hearing on the nomination of Brett M. Kavanaugh to be an associate justice of the Supreme Court in 2018. (Tom Williams/CQ Roll Call/POOL file photo)

A federal appeals court in Washington ruled Friday that the House Judiciary Committee has the right to go to court to enforce a subpoena against former White House counsel Don McGahn, but did not fully resolve that same issue regarding a House effort to stop the Trump administration’s spending on barriers on the U.S.-Mexico border.

The rulings from the full U.S. Court of Appeals for the District of Columbia Circuit backed congressional oversight power, and allowed House Democrats to continue legal fights that have stretched for more than a year.

But the D.C. Circuit did not settle key issues about whether McGahn must appear to testify before the committee and produce documents as part of a probe into the actions of President Donald Trump, or definitively settle whether the House can use the courts to stop the executive branch from violations of the Appropriations Clause of the Constitution.

The court in a 7-2 ruling sent the McGahn case back to a district court for further proceedings on McGahn’s objections to this particular subpoena, such as if a close presidential adviser enjoys “absolute immunity” from such testimony.

And the D.C. Circuit returned to a three-judge panel of the court the House lawsuit to challenge the administration plan to spend up to $8.1 billion for construction of barriers on the U.S.-Mexico border as a violation of the Appropriations Clause that usurps Congress’ authority.

The rulings likely delay any resolution to the cases past the presidential election in November and into the next session of Congress.

In the border wall lawsuit, the full appeals court had agreed to look at a June 2019 decision from a district court judge that found the courts were not the place to settle this dispute over congressional appropriations power. 

But on Friday, in a 7-2 ruling, the D.C. Circuit instead ordered both sides to weigh in on what Friday’s ruling in the McGahn case means for the House right to sue over the border wall dispute. That left several judges to criticize a decision that will let the border wall case languish in the courts. 

“The parties have been litigating this case for well over a year, and the court’s remand of the matter to the panel will likely delay final judgment for at least that long again,” Judge Thomas Griffith wrote in a dissent. “Such delay not only deprives the parties of timely resolution of this dispute, but it leaves this circuit’s law on congressional standing uncertain.”

In the McGahn case, the D.C. Circuit found that the committee, acting on behalf of the full House, showed that its legislative, oversight and impeachment functions are harmed when it is denied information, and that a court order it seeks to enforce the McGahn subpoena would resolve that harm.

“Indeed, the ordinary and 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,” the D.C. Circuit opinion states.

Friday’s ruling in the McGahn case from the full D.C. Circuit comes to the opposite conclusion than that of a three-judge panel of the D.C. Circuit in February. That three-judge panel, in a 2-1 ruling, had 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.”

The full D.C. Circuit ruling, however, allows the House to pursue its 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 have 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.

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