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    Trump Vindicated Again: Appeals Court Rules House Can’t Enforce Subpoena To Don McGahn

    Trump Vindicated Again: Appeals Court Rules House Can’t Enforce Subpoena To Don McGahn

    “separation-of-powers principles and historical practice compel us to dismiss for lack of jurisdiction the Committee’s suit to enforce a congressional subpoena against the Executive Branch”

    Article of Impeachment II against Donald Trump was “obstruction of Congress.” One of the bases for the Article was the Trump administration’s position that it did not have to comply with House Committee subpoenas to senior administration officials.

    Donald McGahn, Trump’s former White House Counsel was not named in Article II, but he was among the people who refused to comply. The House Judiciary Committee went to court to enforce the subpoena to McGahn, and a district court judge, in a much ballyhooed opinion, ordered McGahn to appear.

    The U.S. Court of Appeals for the District of Columbia Circuit just ruled that subpoena was unenforceable in court, and reversed. The full opinion (pdf.) is embedded at the bottom of the post.

    The Court noted the background of impeachment for non-compliance with House subpoenas:

    The House of Representatives has since passed two articles of impeachment against the President. H.R. Res. 755, 116th Cong. (2019). The first article charges the President with “abuse of power”; the second with “obstruction of Congress.” Although the second article does not mention McGahn expressly, it alleges that the President unlawfully directed officials “not to comply with” congressional subpoenas and asserts that these directives “were consistent with President Trump’s previous efforts to undermine United States Government investigations into foreign interference in United States elections.” Id. at 6-8. The Senate voted to acquit the President on February 5. See 166 CONG. REC. S936-39 (daily ed. February 5, 2020).

    The Committee also issued a report detailing the President’s alleged wrongdoing, see H.R. REP. NO. 116-346 (2019), that explains the Committee’s continued interest in McGahn’s testimony. Specifically, the Committee explained that it intended to use McGahn’s testimony “in a Senate trial on these articles of impeachment” and to continue investigating “President Trump’s obstruction of the Special Counsel.” Id. at 159 n.928; see also Committee Suppl. Br. 5-8. If the Committee obtains McGahn’s testimony, it may “consider[] whether to recommend new articles of impeachment.” Id. at 7. The Committee also claims that it needs McGahn’s testimony “for pressing legislative and oversight purposes,” including the consideration of certain legislation. Id. at 8-9.

    The Court held, 2-1, that the subpoena was not enforceable in court:

    The Committee now seeks to invoke this court’s jurisdiction to enforce its subpoena. The Department of Justice (DOJ), on behalf of McGahn, responds that Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute. We agree and dismiss this case….

    In this case, the Committee’s dispute with the Executive Branch is unfit for judicial resolution because it has no bearing on the “rights of individuals” or some entity beyond the federal government. Marbury, 5 U.S. at 170. The Committee is not a private entity seeking vindication of its “constitutional rights and liberties . . . against oppressive or discriminatory government action.” Raines, 521 U.S. at 829 (internal quotation marks omitted). Nor does the Committee seek the “production or nonproduction of specified evidence . . . in a pending criminal case”—the “kind of controversy” threatening individual liberty that “courts traditionally resolve.” United States v. Nixon, 418 U.S. 683, 696-97 (1974)….

    In this case, the dangers of judicial involvement are particularly stark. Few cases could so concretely present a direct clash between the political branches. The Committee opened an investigation into possible presidential wrongdoing, which culminated in articles of impeachment against the President. The Committee claims that, in furtherance of this investigation, McGahn must testify about events that occurred during his tenure as White House Counsel. Meanwhile, the President denies all wrongdoing, and he has instructed McGahn not to testify.

    The branches are thus locked in a bitter political showdown that raises a contentious constitutional issue: The Committee claims an absolute right to McGahn’s testimony, and the President claims an absolute right to refuse it. We cannot decide this case without declaring the actions of one or the other unconstitutional, and “occasions for constitutional confrontation . . . should be avoided whenever possible.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 389-90 (2004) (internal quotation marks and alterations omitted). Indeed, the House cited the Executive Branch’s litigating position in this very case in support of its “obstruction of Congress” article of impeachment. See H.R. REP. NO. 116-346, at 155 & n.906. In turn, the White House Counsel cited the Committee’s litigating position in the President’s defense. See Trial Memorandum of President Donald J. Trump, In Proceedings Before the United States Senate 49, 53 (Jan. 20, 2020)….

    If we order McGahn to testify, what happens next? McGahn, compelled to appear, asserts executive privilege in response to the Committee’s questions. The Committee finds those assertions baseless. In that case, the Committee assures us, it would come right back to court to make McGahn talk. See Oral Arg. Tr. 60:25-61:1. 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.

    * * *

    We conclude that separation-of-powers principles and historical practice compel us to dismiss for lack of jurisdiction the Committee’s suit to enforce a congressional subpoena against the Executive Branch.

    Jonathan Turley tweeted:

    The DC ruling further demonstrates that Article 2 on obstruction of congress was premature, as I testified. The White House is vindicated in showing that it had valid constitutional arguments to make — arguments ridiculed at the Senate trial . . .

    Of course, Democrats are flipping the Turley position by saying going to court would have been a waste of time, so impeachment was justified. Some are arguing that Congress should use its inherent power of contempt to arrest and jail McGahn and others who defy congressional subpoenas.

    One thing is clear, this is a huge political vindication for Trump.


    mcgahn-ruling-2020-02-28 by Legal Insurrection on Scribd


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    katasuburi | March 2, 2020 at 3:59 pm

    Ragspierre hit hardest. “This was the headline used: Trump Vindicated Again: Appeals Court Rules House Can’t Enforce Subpoena To Don McGahn

    This is from someone I used to respect…” at

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