The D.C. Circuit Court of Appeals on Friday, Feb. 28, dismissed the House Judiciary Committee’s suit against former White House Counsel Don McGahn.  The Committee sued to get a court order for McGahn to produce documents, enforcing a subpoena they issued in April.  The appellate court panel ruled 2-1 that Congress did not have legal standing to sue over the issue.  The White House’s claim of “absolute immunity” was, however, not embraced by the judges.

The court’s panel consisted of two Republican appointees (each appointed by one of the two Presidents Bush) and one Clinton appointee. Despite Chief Justice Roberts’ claims to the contrary, it will come as no surprise that the Clinton appointee was the dissenter.  All three judges wrote lengthy opinions to justify their conclusions, though the best reason is not rooted in constitutional law but in practicality.

No Lawsuit for Every Controversy

Before launching into legal standing and a dozen other sophisticated issues, Judge Thomas Griffith’s majority opinion addresses the likely consequences of granting the Committee’s petition:

“If we order McGahn to testify, what happens next? McGahn, compelled to appear, asserts executive privilege in response to the Committee’s questions. The Committee finds those assertions baseless. In that case, the Committee assures us, it would come right back to court to make McGahn talk. 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 describes just what would lay in store for the judiciary if they were called on to resolve such disputes, including “complicated and fact-intensive” evaluations.  He quotes Justice Robert Jackson from a 1952 opinion, “[a] judge . . . may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power.”  While it’s usual to see a judge delve into the practical application of a judgment so much, here the analysis is welcome, wise, and cautionary “[w]e would be forced to supervise the branches, scrutinize their asserted constitutional interests, and elaborate a common law of congressional investigations.”

Separation of Powers

Don McGahn (Photo by Alex Wong/Getty Images)

The legal reason the court threw out the suit was that “Article III of the Constitution forbids federal courts from resolving this kind of interbranch dispute.”  The Court’s opinion, citing volumes of federal case law back to 1804, concludes that “separation of powers principles and historical practice compel us to dismiss…”

The Supreme Court ruled against President Richard M. Nixon’s claim of executive privilege in response to a judicial subpoena during Watergate.  The House Judiciary Committee and the lower court both think the Nixon case is analogous and should control here.  The majority opinion says the key difference is that, in Nixon’s case, they were enforcing judicial subpoenas, not legislative ones issued by another branch.  “[T]hose cases arose out of efforts to enforce judicial subpoenas in criminal cases—not, as here, congressional subpoenas.”

No Absolute Immunity

Don McGahn’s successor as White House Counsel, Pat Cipollone, wrote to the House Committee claiming certain presidential aides are “absolutely immune from compelled congressional testimony…”  That assertion was not embraced and roundly rejected in the majority opinion, the dissent, and a concurring opinion by Judge Karen Henderson.  She writes, “I believe McGahn’s claimed immunity rests on somewhat shaky legal ground.”  Still, even the lone dissenter wouldn’t require McGahn to answer any specific question or turn over any document.  Henderson would only require him to present himself before the Committee and each question or production request would have to be evaluated on its own.  Judge Griffith’s predictions would become a nightmare for the Courts and the country.

The majority opinion spends a good amount of ink rebutting the dissent notion that the courts are the last resort for Congress.  Griffith gives the legislature some sound advice that they should act independently to resolve their dispute, without help from the federal courts, quoting James Madison:

“This power over the purse, may in fact be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

Cutting off funding for popular outlays may bring Trump officials to testify, but they might bring trouble for members of Congress.  It would be much easier for them if the courts would do their dirty work, and that’s why we have this suit.  With a 5-4 split at the Supreme Court favoring conservatives, it seems unlikely this case will fare differently there, but hope springs eternal.  At press time House Judiciary Committee Chairman Nadler did not indicate whether he would appeal the decision.

~

Read more from Scott D. Cosenza.