WASHINGTON — A federal appeals court ruled Friday that House Democrats can take the Trump administration to court when current and former officials refuse to comply with subpoenas, rejecting the Justice Department’s argument that Congress could not ever sue.
The ruling from the US Court of Appeals for the DC Circuit is a major win for House Democrats in their ongoing efforts to wrest documents and testimony from the Trump administration. A three-judge DC Circuit had previously ruled that Democrats lacked standing to bring a lawsuit after former White House counsel Don McGahn defied a subpoena to testify before the House Judiciary Committee.
Democrats asked the full court to rehear the case. In Friday’s 7–2 decision, Judge Judith Rogers wrote for the majority of the court that the committee had proved that it “suffers a concrete and particularized injury” when it cannot get information “necessary to the legislative, oversight, and impeachment functions of the House.”
“Indeed, the ordinary and effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary,” Rogers wrote.
Trump’s two appointees to the DC Circuit, Judges Greg Katsas and Neomi Rao, did not participate in the case.
Friday’s decision doesn’t end the fight over McGahn’s testimony. The Justice Department could petition the US Supreme Court to take up the case; if the justices agreed, the litigation could extend well into 2021. The ruling doesn’t resolve other arguments that McGahn and the Trump administration raised in contesting the subpoena, so the case now goes back down to the US district court to address those.
A spokesperson for the Justice Department did not immediately return a request for comment. House Judiciary Committee Chair Jerry Nadler said in a statement that the court’s decision “strikes a blow against the wall of impunity that President Trump has tried to build for himself.”
The DC Circuit heard arguments in the case in April, along with a separate case that House Democrats had brought against the administration over Trump’s plan to divert money allocated for military spending to pay for border wall construction. In that case, the administration had also argued that Congress lacked standing to sue. The DC Circuit sent that case back down to the district court judge to reconsider in light of the decision in the McGahn case.
The House Judiciary Committee had subpoenaed McGahn in April 2019 to testify after the conclusion of Robert Mueller’s investigation into Russian influence in the 2016 election and whether Trump attempted to obstruct that probe. McGahn, who served as White House counsel from January 2017 to October 2018, featured prominently in Mueller’s report, and Democrats said they wanted McGahn to testify as they considered whether to pursue impeachment against the president.
McGahn’s successor as White House counsel, Pat Cipollone, notified the committee that Trump had directed McGahn not to appear because the Justice Department’s Office of Legal Counsel had concluded that current and former senior advisers to the president were “absolutely immune” from being forced to testify before Congress. The House Judiciary Committee sued to enforce its subpoena.
The effort to subpoena McGahn predated Democrats’ eventual impeachment proceedings, which did not relate to events spelled out in Mueller’s report and were instead focused on Trump’s overtures to the Ukrainian government for help investigating his political rival in the 2020 presidential election, Joe Biden. But the administration made the same absolute immunity argument in ordering officials to defy subpoenas to testify in the Ukraine investigation.
US District Judge Ketanji Brown Jackson ruled in November that the committee did have standing to sue, and she also dove into the merits of the fight and rejected the administration’s absolute immunity argument. The Justice Department appealed, and the three-judge panel sided with the Trump administration on the standing issue in February. Rogers, who wrote the main opinion on Friday, was part of the original panel and dissented at the time.
Rogers wrote on Friday that allowing the legislative branch to sue the executive branch to enforce a subpoena “is consistent with the system of separated powers and capable of resolution through the judicial process.” The judiciary wasn’t taking on any new power, Rogers wrote, “but rather plays its appropriate constitutional role.”
The DC Circuit decision noted the Supreme Court’s recent decision in another subpoena fight between Trump and House Democrats. In that case, Trump had sued to challenge congressional subpoenas for his financial records from his accountant and financial institutions, and the Supreme Court ruled that lower courts that sided with House Democrats had failed to fully consider the separation of powers issues at play and sent the cases back for further consideration.
Rogers wrote that the broader separation of powers concerns expressed by the Supreme Court — specifically, whether lawsuits would get in the way of the historical practice of the legislative and executive branches negotiating among themselves to resolve fights over information — didn’t get in the way of Congress having standing to sue to enforce a subpoena, however.
“To the contrary, permitting Congress to bring this lawsuit preserves the power of subpoena that the House of Representatives is already understood to possess. Rather, it is McGahn’s challenge to the Committee’s standing that seeks to
alter the status quo ante and aggrandize the power of the Executive Branch at the expense of Congress,” Rogers wrote.
Removing the possibility of a lawsuit “would upset settled expectations and dramatically alter bargaining positions” in future negotiations between the branches, the judge wrote.
“Presidents could direct widescale non-compliance with lawful inquiries by a House of Congress, secure in the knowledge that little can be done to enforce its subpoena — as President Trump did here,” Rogers wrote.
Judges Thomas Griffith and Karen LeCraft Henderson — who issued the previous 2-1 decision siding with the Trump administration — each wrote dissents. Henderson wrote that she believed the majority’s decision conflicted with the Supreme Court’s reasoning in sending the subpoena fight over Trump’s financial records back to the lower courts to grapple with the separation of powers issue.
“By holding that the Committee has standing, the majority enlarges the Judiciary’s power to intervene in battles that should be waged between the Legislature and the Executive and opens the door to future disputes between the political branches,” Henderson wrote.
Griffith called the majority’s opinion a “Pyrrhic victory for Congress,” writing that it only encouraged more drawn-out legal fights between the political branches. He wrote that it diluted Congress’s power to use the threat of impeachment to force the executive branch to cooperate with investigations, because presidents could just argue that Congress should have to go through the courts first to enforce subpoenas.
“Today’s decision thus grants Congress the sluggish remedy of judicial superintendence only to blunt the most potent weapon in its arsenal,” Griffith wrote.