Court: House can sue to get testimony

President Donald Trump's former White House Counsel Don McGahn on May 24, 2018, at the White House. MUST CREDIT: Washington Post photo by Jabin Botsford
President Donald Trump's former White House Counsel Don McGahn on May 24, 2018, at the White House. MUST CREDIT: Washington Post photo by Jabin Botsford

WASHINGTON -- House Democrats can sue to force President Donald Trump's former White House counsel Donald McGahn to comply with a congressional subpoena, a federal appeals court ruled Friday.

In a 7-2 decision, the full U.S. Court of Appeals for the D.C. Circuit affirmed Congress' oversight powers and said the House has a long-standing right to compel government officials to testify and produce documents.

The "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," Judge Judith Rogers wrote for the majority.

The ruling does not mean that McGahn will immediately appear before the House Judiciary Committee.

The matter now returns to the panel for consideration of other legal issues. The current House session ends Jan. 3. Because the majority failed to decide the merits of the case, that time crunch means "the chances that the committee hears McGahn's testimony anytime soon are vanishingly slim," dissenting Judge Thomas Griffith wrote.

The majority opinion also cleared the way for a second House lawsuit, finding that lawmakers are not barred from going to court to challenge the Trump administration to block the diversion of billions of dollars to build the southern border wall.

House Speaker Nancy Pelosi, D-Calif., said the court rejected the president's "outrageous claim that Congress cannot enforce its subpoenas."

"The House will continue to pursue justice until Don McGahn and all administration officials comply with our rightfully-issued subpoenas," Pelosi said in a statement. "We remain committed to our oversight responsibilities and to our nation's fundamental principle that no one is above the law -- not even the President."

Judiciary Committee Chairman Jerrold Nadler, D-N.Y., whose panel issued the subpoena, said the ruling was consistent with a pair of Supreme Court decisions in July rejecting the president's claims of sweeping immunity from investigations by a state prosecutor and Congress.

In response to the rulings, Justice Department spokeswoman Kerri Kupec said, "While we strongly disagree with the standing ruling in McGahn, the en banc court properly recognized that we have additional threshold grounds for dismissal of both cases, and we intend to vigorously press those arguments before the panels hearing those cases."

Griffith and Judge Karen LeCraft Henderson dissented in both cases, emphasizing that courts should not intervene in political disputes.

"Who benefits from today's decision? Not Congress. The majority's ruling will supplant negotiation with litigation, making it harder for Congress to secure the information it needs," Griffith wrote.

"The federal courts won't benefit, either," Griffith added. "The majority's decision will compel us to referee an interminable series of interbranch disputes, politicizing the Judiciary by repeatedly forcing us to take sides between the branches."

The majority rejected that reasoning, saying ruling against the House would dramatically weaken Congress's leverage in future battles for information from the executive branch.

"Without the possibility of enforcement of a subpoena issued by a House of Congress, the executive branch faces little incentive to reach a negotiated agreement in an informational dispute," Rogers wrote. "Indeed, the threat of a subpoena enforcement lawsuit may be an essential tool in keeping the executive branch at the negotiating table."

Judges Gregory Katsas and Neomi Rao did not participate in either case. Both were nominated by Trump and previously held high-level positions in his administration.

House Democrats initially subpoenaed McGahn before the start of the chamber's formal impeachment investigation of the president that ended with Trump's acquittal in the Senate in February. But House lawyers told the court that McGahn's testimony is still relevant to ongoing oversight and will help the Judiciary Committee determine whether Trump "committed impeachable offenses" in Robert Mueller's former special counsel investigation.

Information for this article was contributed by Ann E. Marimow, Spencer S. Hsu and John Wagner of The Washington Post; and by Mark Sherman of The Associated Press.

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