Democrats Get Appeals Court to Rehear McGahn Subpoena Case

(Bloomberg) -- House Democrats have persuaded a federal appeals court to rehear an August decision dismissing their lawsuit seeking to compel the testimony of former White House counsel Don McGahn.

It is the second time the case has been granted a so-called “en banc” rehearing by the full panel of the federal appeals court in Washington. The full court ruled in August that Congress has legal standing to sue the executive branch and that the judicial branch has the authority to resolve such disputes, overturning the decision of a three-judge panel that had earlier ruled against the Democrats.

But the case was sent back to the smaller panel, which found a different basis to reject the suit, prompting a fresh request by Democrats for an en banc rehearing.

The case stems from McGahn’s refusal to comply with a Democratic subpoena seeking to force him to testify about Russian interference during the 2016 election. The Trump administration has argued that the case should be dismissed because 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.

After the full appeals court said Democrats had standing to sue, the smaller panel ruled that the House is not permitted to bring such legal actions unless a law is passed specifically allowing it. Now the full appeals court will evaluate that legal claim, with oral arguments scheduled for Feb. 23, 2021.

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