Trump Victory Over Congressional Oversight Is in Doubt

(Bloomberg) -- A federal appeals court set aside and will review a legal victory for President Donald Trump last month that called congressional oversight of the White House into question.

The court in Washington said Friday it would have a larger panel of judges rehear a Feb. 28 decision dismissing a House lawsuit seeking the testimony of former White House Counsel Don McGahn. The court said in the prior ruling that it lacked jurisdiction to decide a dispute between the executive and legislative branches. The rehearing is scheduled for April 28.

Friday’s order suggests that the court’s full bench was unsettled by the earlier ruling. Two judges appointed by Trump said they won’t participate in the subpoena case, meaning that judges appointed by Democrats will have a considerable majority.

Jennifer Rodgers, a former federal prosecutor and a lecturer at Columbia Law School, said the court’s decision to grant a rehearing suggest they will throw out the earlier ruling.

“They only take it if enough judges on the entire panel feel it needs to be reviewed,” she said. “For them to say, ‘We need to hear this’ suggests they want to do something about it. They’re not just hearing it to hear it.”

Significant Setback

That would be a significant setback for Trump, who was using the McGahn ruling to bolster his resistance to congressional oversight in several other high-profile cases. The administration has invoked it to request the dismissal of a House Democratic lawsuit that has been seeking his tax returns and other financial information. Congress’s ability to sue the president is also at issue in disputes over Trump’s diversion of military funds to his border wall.

On Thursday, almost 100 former members of Congress and executive branch officials urged the appeals court to reconsider the McGahn ruling, arguing that it could “cripple” the ability of Congress to get information it needs to investigate overreach and lawbreaking by the executive branch.

The former officials “fear that the panel decision will destabilize the constitutional checks and balances our founders fought so hard to establish -- with potentially devastating consequences for the long-term stability of our democracy,” the group said in a joint filing.

Even in the earlier ruling there were hints of disagreement among the Circuit Court judges.

“The Constitution does not vest federal courts with some ‘amorphous general supervision of the operations of government,’” Circuit Judge Thomas Griffith wrote for the majority, quoting in part from an earlier decision.

Future Stonewalling

In her dissent, Circuit Judge Judith Rogers expressed concern that the White House would now be unrestrained in asserting privilege. The majority’s decision “all but assures future Presidential stonewalling of Congress,” she said.

The composition of the appeals court in Washington doesn’t bode well for Trump in a rehearing. It currently has seven active judges appointed by Democratic presidents and four by Republicans -- including two appointed by Trump. But the two Trump appointees, Neomi Rao and Greg Katsas, both recused themselves from participating in the rehearing without giving a reason.

The three-judge panel that heard the McGahn case split 2-1 along ideological lines, with judges appointed by George H.W. Bush and George W. Bush siding against the House Democrats, and Bill Clinton nominee Rogers dissenting.

To contact the reporter on this story: Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Anthony Lin

©2020 Bloomberg L.P.