House Democrats Lose Appeal Over McGahn Testimony Subpoena

(Bloomberg) -- A U.S. appeals court threw out a lawsuit by Congressional Democrats seeking to subpoena former White House Counsel Don McGahn, ruling the House of Representatives isn’t permitted to bring such legal actions until a law is passed specifically allowing it.

The ruling prolongs a dispute that seemed resolved earlier this month when the full appeals court ruled that Congress has legal standing to sue the executive branch and the judicial branch has authority to resolve such disputes, overturning the decision of a three-judge panel that earlier ruled against Democrats. The case was sent back to the smaller panel, which found different basis to reject the suit.

House Speaker Nancy Pelosi said in a statement Monday Democrats would again seek a so-called “en banc” rehearing before the full appeals court.

“This unprecedented ruling again represents a direct challenge to our constitution’s system of checks and balances and therefore to our very Democracy, particularly in light of this Administration’s blanket defiance and obstruction of Congress’s constitutional legislative oversight authority,” she said.

While that standing gets Congress through the courthouse door, it doesn’t keep it there, the three-judge panel wrote on Monday. Congress has twice declined to authorize itself to file lawsuits like the one at the center of the case, including by granting “an express cause of action to the Senate -- but not to the House,” the judges wrote.

“We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit,” according to the 2-1 opinion written by Judge Thomas Griffith, a appointee of President George W. Bush.

House Judiciary Chairman Jerrold Nadler and committee officials are reviewing the decision, said a spokesman, Daniel Schwartz.

“McGahn’s contention that he is entitled to absolute immunity from the Committee’s subpoena lacks merit,” Judge Judith Rogers, a Ronald Reagan appointee, said in a dissenting opinion.

Rogers said Congress has an “implied” cause of action under the Constitution, as well as under the federal Declaratory Judgment Act.

The earlier 7-2 ruling was a blow to the Trump administration’s assertion of far-reaching protections against external oversight. In a separate case, the U.S. Supreme Court ruled last month that the president is not immune to subpoenas related to state criminal investigations. The White House is expected to appeal Friday’s decision to the high court as well, likely dragging the fight on past the November election.

The lawsuit that was triggered last year when the president said his aides were “absolutely immune” from congressional subpoenas, hobbling the House’s efforts to get testimony during the Russia probe. The judiciary committee then sued to compel testimony by McGahn.

The administration had argued that the House has other tools at its disposal to deal with disputes over appropriations or subpoenas, including holding witnesses in contempt, refusing to cooperate with a president’s legislative agenda, shutting down the government and even starting impeachment proceedings. It said allowing such Congressional lawsuits would improperly politicize the judiciary branch and invite a flood of future litigation.

©2020 Bloomberg L.P.