U.S. Circuit Court strikes down House Democrats’ attempt to compel former White House Counsel Donald McGahn (pictured above) to testify.
Last year, prior to the impeachment investigation of President Trump, House Democrats subpoenaed Donald McGahn, former White House Counsel. The House Judiciary Committee sought to examine McGahn’s role in the investigation regarding Russian intervention in the 2016 election.
President Trump assured McGahn that Presidential advisers are immune to compelled Congressional testimony, sending a message to the public that the President and his Cabinet are above the law. The former White House Counsel’s continuous refusal to comply with the subpoena has led to a series of judicial rulings since then.
On August 31st, in a 2-1 decision, the U.S. Circuit Court of Appeals dismissed the House Judiciary Committee’s lawsuit. They recognized the heavy weight that the decision may have on the House’s oversight capabilities. However, they found no existing statute that explicitly gives the House power to use subpoenas to compel individuals to testify before Congress.
Monday’s ruling leaves the House with a couple of options. They could use the threat of criminal proceedings to pressure individuals into cooperating in oversight investigations, although this approach would be relatively unprecedented considering the Justice Department’s pattern of refusal to prosecute cases in which ex-White House officials were following suit with a President’s application of executive privilege. The second option is for the House to draft and pass legislation that authorizes Congress to compel testimony via subpoena. However, it is unlikely that House Democrats will be able to pass the bill, issue a new subpoena, and receive testimony from McGahn by the end of this Congress in January. In response to the Appellate Court’s decision, Speaker of the House Nancy Pelosi is seeking immediate review of the case, citing that, “If allowed to stand, this […] ruling threatens to strike a grave blow to one of the most fundamental Constitutional roles of the Congress: to conduct oversight on behalf of the American people, including by issuing our lawful and legitimate subpoenas.” Democratic leaders of the Judiciary Committee have also expressed that the ruling will, “undermine a critical constitutional check on the executive branch.”
Committee, House Judiciary. House Investigative Chairs Joint Statement on Court of Appeals Ruling in McGahn Case. (2020, August 31). Retrieved September 04, 2020, from https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=3297
Gerstein, J., & Cheney, K. (2020, September 01). D.C. Circuit panel guts House subpoena power. Retrieved September 04, 2020, from https://www.politico.com/news/2020/08/31/dc-circuit-panel-kills-house-subpoena-power-406140
Hsu, S., & Marimow, A. (2020, August 31). Court dismisses House lawsuit seeking to enforce a subpoena of former White House counsel Donald McGahn. Retrieved September 04, 2020, from https://www.washingtonpost.com/local/legal-issues/court-dismisses-house-lawsuit-seeking-to-enforce-a-subpoena-of-former-white-house-counsel-donald-mcgahn/2020/08/31/c693ad3e-ebaf-11ea-ab4e-581edb849379_story.html
Polantz, K. (2020, August 31). House Democrats can’t subpoena former White House counsel, appeals court rules. Retrieved September 04, 2020, from https://www.cnn.com/2020/08/31/politics/democrats-mcgahn-appeals-court-subpoena/index.html
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