Court Rules Congress Cannot Sue to Force Executive Branch Officials to Testify

https://www.nytimes.com/2020/02/28/us/mcgahn-subpoena-trump.html?action=click&module=Top%20Stories&pgtype=Homepage

By Charlie Savage
Feb. 28, 2020

A federal appeals court ruled on Friday that Congress could not sue to enforce its subpoenas of executive branch officials, handing a major victory to President Trump and dealing a severe blow to the power of Congress to conduct oversight.

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In a ruling that could have far-reaching consequences for executive branch secrecy powers long after Mr. Trump leaves office, a divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed a lawsuit brought by the House Judiciary Committee against Mr. Trump’s former White House counsel, Donald F. McGahn II.

On Mr. Trump’s instructions, Mr. McGahn defied a House subpoena seeking to force him to testify about Mr. Trump’s efforts to obstruct the Russia investigation. The House sued him, seeking a judicial order that he show up to testify, and won in district court in November.

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But two of the three appeals court judges ruled on Friday that the Constitution gave the House no standing to file any such lawsuit in what they characterized as a political dispute with the executive branch. If their decision stands, its reasoning would shut the door to judicial recourse whenever a president directs a subordinate not to cooperate with congressional oversight investigations.

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The ruling deflates a primary argument used by Mr. Trump’s defense team to question the legitimacy of the impeachment process. His lawyers insisted that the House should have pursued all of its legal avenues to secure testimony rather than charging the president with obstruction of Congress. But even as the impeachment trial unfolded, the Justice Department was arguing in the McGahn case that such lawsuits were invalid and, ultimately, the court adopted that reasoning.

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Both judges in the majority were appointed by Republican presidents — Judge Griffith was appointed by George W. Bush and Judge Karen L. Henderson, who joined him in the decision, was appointed by George Bush. Judge Rogers was appointed by President Bill Clinton, a Democrat.

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