Most of the nine judges who joined in the rare en banc session Tuesday seemed receptive to the House’s concerns, with one judge musing the Trump administration was so intent on sidelining the courts that the public would be left only with „revolution“ as an alternative.
A lawyer representing the Trump administration offered a sweeping argument that Congress has no authority to take legal action to enforce its subpoenas because that power lies solely with the president. Rather, lawmakers must rely on a set of political tools — from choking off funding to blocking presidential nominations to impeachment — to bend a stonewalling president to the Congressional will.
“Issuing subpoenas — that’s a prerogative of Congress. Enforcing subpoenas and enforcing laws — that’s a prerogative of the president,” Justice Department attorney Hashim Mooppan said.
The House’s top lawyer, Doug Letter, said DOJ’s position would upend decades of practice in congressional investigations and effectively leave lawmakers powerless to stand up to an obstructive administration.
“If the court goes with the Justice Department arguments … congressional oversight as it has been known for this country for years is going to change and be very, very different,” Letter said.
House Democrats are hopeful for a victory from the full appeals court, which is heavy with appointees of President Barack Obama and generally seen as more favorable to the House’s arguments than the three-judge panel which ruled against them 2-1 in February.
Most of the judges taking part in Tuesday’s arguments signaled early and often that they viewed DOJ’s stance with skepticism, repeatedly referencing the extreme notion of the House having to resort to arresting McGahn to get its questions answered or even a judicial resolution of Trump’s claims of executive privilege.
Judge Nina Pillard, an Obama appointee, said DOJ’s stance would leave the House with little but “huge, blunt, disproportionate nuclear options” to try to procure information.
The high-stakes battle over the House’s demand for testimony from McGahn could decide one of the most urgent political issues of Trump’s presidency — whether the White House can block Congress from using the legal system to force crucial witnesses to testify about alleged obstruction of justice by the president himself.
But it also has the potential to reshape the relationship between presidents and Congress for generations to come.
A decision by the courts seems increasingly unlikely to come in any definitive way on a timeline that would produce testimony from McGahn or other witnesses in advance of the November presidential election.
That reality, as some congressional Democrats feared, represents a win for Trump, whom they accused of tying up their case in unending litigation to prevent McGahn from publicly testifying about presidential wrongdoing. McGahn was a central witness in the two-year investigation led by former special counsel Robert Mueller into the Trump campaign’s contacts with Russians in 2016. He ultimately provided damning evidence that Trump repeatedly sought to obstruct the probe, though he declined to recommend criminal charges, citing a Justice Department prohibition on moving against a sitting president.
But even if the D.C. Circuit ultimately orders McGahn to testify, Justice Department lawyers are expected to ask the Supreme Court to step in. The justices may well decide to freeze the status quo, putting potential high court arguments in the case off until the fall or winter and pushing off a final decision until well after Trump is sworn in for a second term as president or Joe Biden is sworn in for a first.
The appeals court heard the case Tuesday by teleconference due to the coronavirus pandemic. In addition, it considered the McGahn dispute in tandem with another legal fight between the House and the Trump administration: a suit seeking to block officials from spending money on Trump’s border wall project.
Mooppan pleaded with the judges to steer clear of both fights. He accused the House of making a “radical break” with history by seeking to enmesh the judiciary in the interbranch battles.
“Disputes between the political branches about their institutional prerogatives have occurred since the founding, but lawsuits between them are a novel and unsanctioned tactic,” Mooppan said.
But Judge Merrick Garland said foreclosing all suits by Congress could allow a rogue president to spend wildly, like by paying for health insurance for every American even if Congress never authorized such a program.
“Does Congress have standing to challenge that?” asked Garland, an appointee of President Bill Clinton.
“No,” Mooppan replied.
There were a few technical glitches early in the roughly three-and-a-half hours of arguments, as Mooppan’s voice disappeared at times amid a combination of rustling noises and outright silence. At another point, one judge could be heard talking to someone else as another sought to ask a question. The questioning was also more stilted than usual since the judges went one-by-one in order of seniority to ask questions, with little repartee among the jurists.
House Democrats, who took power in 2019, quickly sought to secure McGahn’s testimony, but Trump directed him to refuse cooperation and McGahn deferred. The White House asserted that McGahn was “absolutely immune” to testifying, a position that seemed at odds with an earlier court rulings requiring executive branch officials to appear before Congress and provide records that are not legally privileged. The standoff led to a string of legal battles last fall that included a resounding win for the House at the District Court level, where Judge Ketanji Brown Jackson excoriated the Trump administration’s posture toward Congress.
But in February, a three-judge D.C. Circuit panel swept aside Jackson’s ruling and determined that the courts have no role settling disputes between the White House and Congress — a sweeping decision that would reshape Congress’ ability to wrest information out of reluctant administrations.
The appeals court panel suggested that Congress could use other political tools, short of court intervention, to force an administration to provide information: from cutting off funds to holding officials in contempt to impeaching the president — and in extreme cases, detaining or jailing administration officials. House lawyers emphasized that they had pursued all of those tools short of physical detentions that they said would provoke an almost comical level of hostility between the branches, imagining gun battles between the House sergeant at arms and the FBI.
Judge David Tatel returned to those issues Tuesday, asking Mooppan if the dispute he urged the court to step aside from couldn’t come right back to the court if the House chose to arrest McGahn.
Mooppan insisted the courts would have to free McGahn, even without wading into the merits of the subpoena fight.
“That is beyond the scope of Congress’ power,” the Justice Department lawyer said about the prospect of such an arrest. “Congress doesn’t have any express authority to go around arresting people…There is simply no historical support for the notion that they can arrest an executive branch official for following executive branch directives.”
Writing for the majority in the February decision in the McGahn case, Judge Thomas Griffith said that allowing the courts to adjudicate such subpoenas would result in Congress abandoning the usual process of negotiation.
“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,” wrote Griffith, an appointee of President George W. Bush.
The victory for the president was short-lived, however, as just two weeks later the D.C. Circuit announced it was accepting the House’s request that a rare “en banc” court convene to re-hear the case.
Strikingly, during Tuesday’s arguments, no judge offered vigorous public support for the administration’s stand.
While Griffith sided with the Justice Department in February and wrote the ruling saying the courts should butt out of the McGahn fight, he expressed sympathy Tuesday for the House, saying it has faced extraordinary obstructionism from the Trump administration.
“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?” the George W. Bush appointee asked Mooppan. “Hasn’t this administration eschewed the traditional norms of compromise and negotiations that you rely on in your arguments so heavily?”
The judge who joined with Griffith in that opinion, fellow Bush appointee Karen Henderson, was on the call Tuesday but passed up the chance to question the lawyers or discuss her own views on the disputes.
The lineup of nine judges who heard the McGahn appeal Tuesday is starkly different ideologically from the increasingly conservative, nine-justice Supreme Court that could eventually resolve the case.
The active D.C. Circuit bench leans toward Democratic appointees, 7-4, but the two judges nominated by Trump recused themselves, leaving the court with only two GOP appointees among the nine judges hearing Tuesday’s cases.
Trump appointee Greg Katsas, who served in the White House counsel’s office early in Trump’s term, indicated during his confirmation hearings that he would likely recuse from cases stemming from the Mueller probe. It’s less clear why the D.C. Circuit’s newest member, Judge Neomi Rao, stepped aside, but from 2017 to 2019 she held a top position at the Office of Management and Budget, which is part of the White House.
For more than a decade, presidents and lawmakers from both parties have shied away from the sort of showdown that took place Monday before the powerful Washington-based appeals court. While Congress occasionally took such battles to court, both sides typically pulled back from the brink before the D.C. Circuit could issue a precedent-setting ruling.
The impulse to leave unresolved the question of the courts’ role in enforcing Congressional subpoenas directed to the executive branch led to negotiated settlements in two high profile disputes in the last dozen years.
In 2009, President Barack Obama’s new White House helped broker a compromise in a lingering battle over House Democrats’ demands for testimony and documents from aides to former President George W. Bush about his firing of eight U.S. attorneys after the 2006 election.
U.S. District Court Judge John Bates — a Bush appointee — rejected the Justice Department’s claim of absolute immunity, insisting that the Bush aides could not ignore the House subpoenas. But Bates never waded into the issue of what specific questions had to be answered or what specific documents had to be forked over.
Under the 2009 deal, former White House counsel Harriet Miers and political strategist Karl Rove gave transcribed interviews to the House Judiciary Committee, while the Justice Department dropped its appeal of Bates’ ruling.
A similar fight broke out in 2012 as the GOP-led House sought documents from the Justice Department and White House pertaining to the fall-out from Operation Fast and Furious, a federal gunrunning investigation that allowed as many as two thousand weapons to be purchased illegally with many ending up in Mexico.
U.S. District Court Judge Amy Berman Jackson, an Obama appointee, echoed Bates’ decision and turned down the Justice Department’s call for the courts to butt out of the case. The legal battle bogged down for years as Justice tried to appeal while the White House also sought a compromise.
Ultimately, Obama turned over most of the documents the House sought but the House appealed to get even more. The legal saga lingered into the Trump administration before it was finally settled last year, after both sides made an unsuccessful bid to wipe out Jackson’s decision.
Source: politico.com
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