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Appeals court tosses suit to compel Don McGahn to answer House questions on Mueller probe

Former White House counsel resisted House subpoena

An appeals court threw out a lawsuit Monday seeking to compel former White House counsel Don McGahn to appear before a House committee.
An appeals court threw out a lawsuit Monday seeking to compel former White House counsel Don McGahn to appear before a House committee. (Tom Williams/CQ Roll Call file photo)

A federal appeals court in Washington for a second time threw out a House Judiciary Committee lawsuit seeking to force former White House counsel Don McGahn to testify about episodes on Russian interference in the 2016 presidential election.

A three-judge panel of the U.S Court of Appeals for the District of Columbia Circuit, in a 2-1 decision Monday, ruled that Congress first needs to pass a law to authorize the committee to file such a lawsuit.

The decision is the latest in an up-and-down path through the courts for House Democrats and their effort to use the federal courts to enforce congressional subpoenas as part of probes into episodes from former special counsel Robert S. Mueller III’s report and President Donald Trump’s moves to try to stymie that investigation.

In February, a three-judge panel 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.” But earlier this month, the full D.C. Circuit revived the committee’s effort, ruling that the committee did have a right to go to court to enforce the McGahn subpoena.

On Monday, the three-judge panel ruled that although Congress had the right to go to court, Congress had not passed a law that authorized such lawsuits. So the panel ruled the House Judiciary Committee’s suit, again, must be dismissed.

“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,” Judge Thomas Griffith wrote for the majority.

Griffith wrote that the full Congress — and not just one chamber — can enact a statute that makes House requests for information judicially enforceable. He wrote that the Constitution gives Congress, not federal judges, the power to decide whether the House can “leverage the power of federal courts to compel testimony or the production of documents.”

Speaker Nancy Pelosi of California called the panel decision “wrong-headed” in a news release and said the House would immediately ask the full D.C. Circuit to rehear it.

Griffith, a George W. Bush appointee, was joined in the majority by Karen Henderson, a George H.W. Bush appointee. They did not address in the decision the merits of the case, such as the McGahn’s contention that a close presidential adviser enjoys “absolute immunity” from such testimony.

Judge Judith Rogers, in a dissent, wrote that Supreme Court precedent means the committee already has the authority to go to court without passing a new law. The powers of Congress enumerated in Article I of the Constitution “imply not only a right to information but also a right to seek judicial enforcement of its subpoena,” Rogers wrote.

Rogers is a Bill Clinton appointee.

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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