Federal appellate judges grilled the Trump administration on Tuesday in its dispute with the House over former White House counsel Don McGahn’s refusal to comply with a congressional subpoena for his testimony.
In perhaps the most high-profile court hearing since the coronavirus pandemic forced the judiciary to hold virtual proceedings, the Trump administration and the House delivered oral arguments before the D.C. Circuit Court of Appeals in the McGahn case as well on a dispute over whether the administration can use Pentagon funds to build a border wall.
The House sued the administration early last year after President TrumpDonald John TrumpWest Virginia announces six-week reopening process Americans receive signed Trump letters in the mail explaining coronavirus stimulus checks Coronavirus warnings appeared repeatedly in classified presidential briefings in January, February: report MORE ordered the use of defense funds for the border wall in the wake of an impasse over the issue with Congress forced a government shutdown.
Both cases have become a legal test of whether Congress can take the executive branch to court. A smaller panel of D.C. circuit judges said no earlier this year, ruling that the House could not seek to have their subpoena of McGahn enforced by the judiciary.
A larger panel of circuit judges is now rehearing the case and appears to be more skeptical of the Trump administration’s claims that congressional subpoenas are essentially legally unenforceable. They repeatedly grilled the Trump administration’s lawyer over his arguments that the executive and legislative branches cannot settle disputes in court.
“It just seems a little bit odd that we would create a regime in which, in order to protect the separation of powers, the incentive, the impulse would be to go down a road that would create a greater separation-of-powers conflagration in the form of a detention of an executive branch official,” said Judge Sri Srinivasan, an Obama appointee. “Not saying that’s realistic, not saying that anyone’s suggesting that’s on the horizon, but in terms of the implications for doctrine, that’s where we’d wind up.”
Judge Judith Rogers, a Clinton appointee, worried that under the Department of Justice’s interpretation, if a president violated the Constitution “there’s nothing that can be done until the next presidential election other than revolution.”
The panel also took shots at the administration’s conduct.
“How is Congress to conduct its constitutional duty of oversight in the face of the type of utter disregard this administration has shown for that oversight?” Judge Thomas Griffith, who was appointed by President George W. Bush, asked a lawyer for the Justice Department.
Nine judges sat on the panel that heard arguments Tuesday morning, including seven who were appointed by Democratic presidents and two Republican appointees.
The House Judiciary Committee subpoenaed McGahn to testify last year as part of the lower chamber’s impeachment inquiry. Trump directed McGahn not to comply, asserting that his aides have blanket immunity from congressional subpoena.
The committee then sued, asking a federal judge to enforce the subpoena. The judge agreed with the House, dismissing Trump’s immunity claims and argument that Congress has no legal standing to sue as “baseless.”
In February, a three-judge panel ruled 2-1 on appeal that the House had no standing to sue. In an opinion written by Griffith, the majority, comprised of two Republican-appointed judges, worried about the prospect of the judiciary constantly refereeing disputes between the two political branches.
“The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often,” Griffith wrote.
The administration has been fighting off congressional oversight efforts on multiple fronts. The Supreme Court is currently weighing multiple subpoenas for the president’s personal financial records and will hear oral arguments in those cases next month.
The Department of Justice argues that the judiciary is constitutionally prohibited from mediating disputes between branches of government. The administration says that lawmakers have plenty of political tools to give leverage to their subpoenas, like withholding appropriations funds or even impeaching executive branch officials.
“What it means to have a system of separation of powers is that when each branch thinks the other branch is exceeding its powers, it uses its tools to deal with that, and the legislature had ample tools of legislative variety to deal with the alleged violations here, but the one tool it does not have, and has never had, is the ability to file lawsuits against the executive,” Hashim Mooppan, a lawyer with the Justice Department, argued.
The House’s lawyer, Douglas Letter, argued that legislative tools are an ineffective and inefficient method for having its demands enforced.
“If we can’t enforce subpoenas, then they become really like a joke,” Letter said, arguing that it makes little sense to shut down the government, impeach or threaten government officials with arrest to enforce routine subpoenas.
“Surely nobody thinks that a good way to interpret [the Constitution] is to say the House can’t sue in court, instead go out and arrest people and you can have gun battles between the sergeant at arms and the attorney general’s security detail,” Letter said.
John Kruzel contributed to this report, which was updated at 2:42 p.m.