D.C. Circuit Court of Appeals hears oral argument in Don McGahn case

Charlotte Butash and Margaret Taylor have the full play-by-play color commentary, complete with an audio link, of the Oral Arguments in the DC Circuit En Banc Consideration of Committee on the Judiciary v. McGahn and U.S. House of Representatives v. Mnuchin at Lawfare Blog. From the introductory portion of their analysis:

On April 28, Justice Department attorneys and attorneys representing the House of Representatives argued by teleconference before the U.S. Court of Appeals for the District of Columbia Circuit, sitting en banc, in two cases concerning Congress’s Article III standing to sue over alleged executive branch illegality: Committee on the Judiciary v. McGahn and U.S. House of Representatives v. Mnuchin.

McGahn concerns whether the House of Representatives can go to court to enforce subpoenas compelling testimony from Trump administration officials. The order granting rehearing en banc vacated a three-judge panel decision from February 2020, which held that the federal courts have no jurisdiction to resolve disputes between the president and Congress over testimony from executive branch officials.

Mnuchin raises similar Article III issues but concerns whether the House of Representatives has standing to sue in district court over the redirection of funding to pay for the border wall. It was also argued before a three-judge panel in February, but the court decided to rehear it en banc along with McGahn before the panel issued its decision. Judges Gregory Katsas and Neomi Rao––both Trump nominees––recused themselves from both cases.

These two cases were considered together because both present the threshold question of whether the Supreme Court’s decision in Raines v. Byrd bars Congress from vindicating its constitutional powers––including the appropriations power and the need for information to inform the legislative or impeachment powers––in federal courts. That is the sum and substance of the Justice Department’s arguments in both cases and, on the whole, the panel seemed skeptical of such a sweeping conclusion.

At the same time, there was a clear interest in discerning what limiting principles should apply that would not put the courts in a position of constantly mediating disputes between the Article I and Article II branches. If a congressional committee can come to the courts for subpoena enforcement, and any time there is a disagreement about whether spending by the President is consistent with the appropriations clause, can it come to the court whenever a committee perceives that the President has tread on a congressionally assigned power? The judges also seemed to wrestle with the question of whether the need to preserve the balance of power among the three branches of government required them to reject the cases on standing grounds or else decide the cases on the merits.

Notably, some of the judges requested the parties’ views of the Supreme Court’s sua sponte request for supplemental briefing in a separate batch of cases involving access to the President’s financial information “addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.” Those cases––Trump v. Vance, Trump v. Mazars and Trump v. Deutsche Bank––involve the validity of subpoenas issued for the president’s financial records and are set to be argued on May 12. It is unclear what impact those cases may or may not have on the timing or substance of the en banc court’s decisions on the McGahn or Mnuchin cases.

Ashwin Phatak at Slate has an excellent legal analysis as well. Are the Courts Finally Ready to Compel Don McGahn to Testify?

On Tuesday, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in Committee on the Judiciary v. McGahn, a case concerning whether former White House counsel Don McGahn must comply with a subpoena from the House Judiciary Committee for his testimony. The key question before the court, hearing the case en banc and telephonically in light of the COVID-19 pandemic, was whether the House has standing to bring a civil action to enforce its subpoena against McGahn. The stakes, though, are much bigger than just this fight between McGahn and the Judiciary Committee. A holding that the House lacks standing will substantially hamper its ability to conduct effective oversight of the executive branch, both now and in the future. Thankfully, as Tuesday’s oral argument showed, most of the judges seemed to understand the gravity of this case and seemed likely to hold that the House has standing to bring this suit.

The McGahn case is fundamentally about Congress’ efforts to investigate President Donald Trump’s attempts to interfere with the Mueller investigation. As special counsel Robert Mueller detailed, McGahn was a central figure in at least two incidents considered in that investigation: Trump’s attempt to fire Mueller in June 2017 and Trump’s effort to get McGahn to issue a false statement about the attempted firing in February 2018. Seeking to hear directly from McGahn about these incidents, the House subpoenaed McGahn to testify before the House Judiciary Committee. But the president directed McGahn not to appear, asserting a theory of absolute immunity for the president’s close advisers that no court has ever approved, and the House went to court to enforce the subpoena.

In a 2–1 decision (the judges in the majority were both appointed by Republican presidents, and the dissenting judge was appointed by a Democratic president), a panel of the D.C. Circuit held that the courts could not hear the case at all. Even as the panel acknowledged that executive branch “obstruction may seriously and even unlawfully hinder the Committee’s efforts to probe presidential wrongdoing,” it nonetheless concluded that the case presented an interbranch dispute in which the judiciary should not be involved. In doing so, Judge Judith Rogers noted in dissent that “the court remove[d] any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assure[d] future Presidential stonewalling of Congress, and further impair[ed] the House’s ability to perform its constitutional duties.” The full court then agreed to rehear the case [which sets aside the panel opinion].

The judges’ questions suggest that they understand the stakes of this case. First, the judges seemed to understand that a ruling that the House lacks standing would make it nearly impossible for the House to enforce its subpoenas against the executive branch going forward. In a typical case where an individual refuses to comply with a congressional subpoena, Congress has a number of tools to enforce compliance. Congress can ask the U.S. Attorney’s Office in D.C. to prosecute the individual for failing to comply with the subpoena under a federal law that makes such noncompliance a crime. Congress can also exercise its inherent contempt authority to arrest a recalcitrant witness until she complies, although that power has been dormant nearly a century. Finally, Congress can theoretically file a civil action in federal court to enforce the subpoena, as it sought to do in the McGahn case.

The Trump administration is contesting Congress’ ability to take that third action. But the problem with its position is simple: The Department of Justice is very unlikely to take criminal contempt action against members of the executive branch. Inherent contempt has not been used in nearly a century, and using it against an executive branch official would surely spark an immediate constitutional conflagration. Thus, if Congress also lacks the ability to bring a civil action, as the panel held, that would mean that Congress would have practically no recourse if executive officers ignored congressional subpoenas, which would make it virtually impossible for Congress to conduct meaningful oversight of a recalcitrant executive branch. As a real-life example of what this would look like, late last year the White House refused to comply with a single subpoena in the impeachment inquiry and then successfully argued before the [Republican-controlled] Senate that the president could not be impeached and removed for this unprecedented obstruction [of Congress].

The panel of the D.C. Circuit responded to the argument that going to court is Congress’ only real remedy by suggesting that Congress has other, political tools at its disposal to incentivize compliance: tools like limiting appropriations, stymying the president’s legislative agenda, or impeachment. But that argument is not convincing for multiple reasons. For one thing, the president argued during his impeachment that he could not be removed for noncompliance and that the appropriate place for adjudicating these disputes was—wait for it—the courts. Moreover, at the en banc argument, Judge Nina Pillard pointed out that these tools might not work in practice. With regard to holding up legislation and appropriations, this would effectively put Congress between a rock and a hard place: to enforce its subpoenas, it would have to hold up important legislation or refuse to fund the government—actions that could do as much, if not more, damage to the American people as they would do to the executive branch. Even without the real-life example from just a few months ago, the argument that the House could resort to impeachment every time it wanted to enforce a subpoena is even more impractical.

Further, multiple judges noted that a holding that the House lacks standing would place the House in a lesser position than most other individuals seeking to enforce (or fight) a subpoena. Indeed, private parties and prosecutors are routinely able to—and do—come into court to enforce lawfully issued subpoenas. Under the Department of Justice’s theory, however, the House would be prevented from enforcing its own subpoenas in court, despite its long-standing authority to conduct investigations of the executive branch. Moreover, as Judges Merrick Garland and Patricia Millett noted, private parties can even come into court under the Freedom of Information Act to obtain documents and other information from the executive branch. Holding that those individuals have standing to get information but the House does not makes little sense, particularly given that the Constitution assigns the House a critically important role as a check on the executive branch.

Multiple judges also noted a troubling inconsistency in the Department of Justice’s position: It would allow the executive branch to file suit to prevent a subpoena while simultaneously precluding the House from filing suit to enforce a subpoena. Indeed, the government’s attorney at the en banc argument took the position that there would be no jurisdictional barrier to the United States filing suit to prevent a former White House counsel who wanted to testify from doing so. If the courts cannot hear interbranch disputes like this one, why should they be able to hear interbranch disputes brought by the executive branch? The Department of Justice did not have a good response to that inconsistency in its position.

Finally, some judges noted that a ruling that the House lacks standing could then lead to an even greater clash between the branches of government. As Chief Judge Sri Srinivasan observed, if the court holds that the House lacks standing to bring a civil action to enforce its subpoena, the House might choose to use its long-standing inherent contempt authority to arrest a recalcitrant witness like McGahn, and McGahn would in all likelihood file a habeas lawsuit challenging his arrest. The Department of Justice attorney suggested that there would be no Article 3 barrier to this type of suit. But, as Srinivasan explained, although such a suit would raise the very same arguments about whether absolute immunity can shield McGahn from testifying, it would lead to a greater separation-of-powers “conflagration,” with one branch attempting to imprison an official—or, in this case, former official—of another before the question arrived in court. Thus, Srinivasan suggested that separation-of-powers principles should permit the House’s suit here, in order to avoid that more serious clash between the political branches.

In short, again and again during the argument, the majority of judges on the D.C. Circuit expressed their understanding of the dire consequences that would follow a ruling that the House lacks standing to enforce its subpoenas against executive branch officials in court. Such a holding would make it nearly impossible for the House to enforce its subpoenas, would place the House in a lesser position than other individuals seeking to enforce subpoenas, and could lead to an even greater separation-of-powers dispute winding up in court. The court seems likely to hold that Congress has standing to bring this suit against McGahn, and that’s a good thing. Such a ruling would allow our constitutional democracy to retain one of the few remaining checks on the executive branch.

As Charlotte Butash and Margaret Taylor note at the end of their reporting:

The timeline for the en banc ruling in these cases is unclear. It is also unclear whether the Supreme Court would take up the case after it is decided. As one of us wrote when the three-judge panel issued its decision in March, the case could be rendered moot by the November election, or in theory be decided by the Supreme Court sometime in 2021. Regardless, the outcome of this case and the three cases set to be argued before the Supreme Court on May 12, could alter the balance of power among the branches of the U.S. government for a generation or more.

Greg Stohr reports on that Supreme Court order for Bloomberg, Supreme Court Orders New Briefs in Trump Financial Record Case (excerpt):

The so-called political question doctrine [non-justiciable doctrine] is a legal principle courts sometimes apply to stay out of matters that the Constitution entrusts to other branches of the government.

If the court were to toss out the case on those grounds, its ruling could undercut Congress’ ability to go to court to enforce its subpoenas against the executive branch in other contexts.

The political question argument “is just kind of silly” in the context of the Trump subpoena case, said Leah Litman, who teaches constitutional law at the University of Michigan Law School. “It’s a question about whether Congress has authority to issue a subpoena to a third party. The court answers questions about the scope of Congress’s powers all the time.”

* * *

Should the justices say the courts lack power to hear Trump’s suits over the House subpoenas, the ruling could lead to his tax returns becoming public before the November election. [Note: The subpoena to Mazars doesn’t explicitly ask for the returns, while Deutsche Bank has said it doesn’t have them.] The banks and the accounting firm aren’t contesting the subpoenas and have said they will comply with their legal obligations.

“It’s another way that Trump can lose,” said Jonathan Adler, who teaches constitutional law at Case Western Reserve University School of Law.

Trump has abused the powers of his office to successfully run out the clock on congressional oversight and his impeachment, and has now seen this constitutional crisis subsumed by the coronavirus pandemic.