House Democrats ask full D.C. Circuit to rehear McGahn case

Washington — The House Judiciary Committee has asked the full federal appeals court in the District of Columbia to rehear a dispute over whether former White House counsel Don McGahn must comply with a subpoena from the Democrat-led panel for testimony about President Trump’s actions during special counsel Robert Mueller’s investigation.

Lawyers for House Democrats warned in their request to the U.S. Court of Appeals for the District of Columbia Circuit that a ruling last month from a divided panel of three judges on the court “has again hamstrung the House’s constitutional right to obtain information.”

The three-judge panel ruled it does not have the power to enforce legislative subpoenas against executive branch officials and ordered the Judiciary Committee’s lawsuit against McGahn dismissed because Congress has not enacted legislation that allows the federal courts to force congressional witnesses to testify.

The committee is now asking the full D.C. Circuit to rehear the case and review the decision by the three-judge panel.

“It is time for the en banc court to resolve this matter so that the House can finally act upon its subpoena and obtain the information it requires to carry out its constitutional responsibilities,” lawyers for House Democrats wrote in their filing to the D.C. Circuit. “All the remaining issues are fully ventilated and appropriate for resolution by the full court.”

The Judiciary Committee issued its subpoena to McGahn, who left the White House in 2018, last year as part of its impeachment inquiry into Mr. Trump. The committee is seeking to question McGahn about whether the president obstructed justice during Mueller’s investigation into Russian meddling in the 2016 presidential election.

McGahn, however, has not complied, and House Democrats filed a lawsuit to enforce the subpoena for his testimony.

The full D.C. Circuit ruled separately in August that the committee has standing to bring the lawsuit against the former White House counsel, but has yet to say whether McGahn is absolutely immune from the Judiciary panel’s subpoena.

House Democrats call McGahn’s claim of absolute immunity “baseless” and urged the full court to “confirm that this theory has no place in our system of checks and balances.”

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House Democrats ask appeals court to review ruling that McGahn doesn’t have to testify

House Democrats asked a larger panel of judges on a powerful Washington, DC-based appeals court on Tuesday to review whether former White House counsel Donald McGahn must appear before a congressional committee and testify about President Donald Trump.



Don McGahn looking at the camera: White House counsel Donald McGahn at a Senate Judiciary Committee hearing on Thursday, September 27, 2018 on Capitol Hill.


© Melina Mara-Pool/Getty Images
White House counsel Donald McGahn at a Senate Judiciary Committee hearing on Thursday, September 27, 2018 on Capitol Hill.

The filing is the latest chapter in a significant separation of powers dispute concerning whether federal courts can enforce legislative subpoenas against executive-branch officials.

Late last month, a three judge panel of the US Court of Appeals for the District of Columbia Circuit ruled that the House’s lawsuit against McGahn must be dismissed. The court reasoned that Congress had to enact law expressly authorizing such a suit before it can go forward.

Now the House wants the full court to review the opinion.

In the new filing, House general counsel Douglas Letter argued that the opinion by the three judge panel “hamstrung the House’s constitutional right to obtain information.”

Letter said it was time for the full court “to resolve this matter so that the House can finally act upon its subpoena and obtain the information it requires to carry out its constitutional responsibilities.”

The House Judiciary Committee has been trying to interview McGahn under oath since spring 2019, and Democrats say they want to question him about potentially obstructive behavior from the President during the Russia investigation, which McGahn witnessed and had disclosed to special counsel Robert Mueller.

But the case has ping ponged between a three judge panel of the court, and the full panel of judges. Previously, the same split panel of three judges said the House didn’t have the ability to take the executive branch to court over a subpoena. But then the full appeals court disagreed, sending the case back to the same three judges.

The Justice Department, representing Trump and his Cabinet, had argued the courts should stay out of the disputes, letting Congress use politics and legislation to force the administration into compliance if it must.



Don McGahn wearing a suit and tie


© Drew Angerer/Getty Images


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