A federal appeals court in Washington stepped in to potentially save the subpoena power of the US House of Representatives, wiping away on Thursday a previous court ruling that made it essentially impossible for the House to force a witness’s testimony without passing a new law.
The move by the DC Circuit Court of Appeals revived the case House Democrats are pursuing against former Trump White House counsel Don McGahn, who has avoided testifying about the President’s attempts to shut down the Mueller investigation for more than a year-and-a-half. The Justice Department has stopped McGahn from appearing under the House subpoena and instead kept the case in court through multiple appeals, arguing for the courts to stay out of the interbranch standoff.
The case won’t be resolved until after the presidential election.
But the DC Circuit now gives a boost to the House in the major, long-running separation of powers fight. It’s a standoff that, as it progresses in court, has been risky for both the executive branch and Congress.
So far in the case, the House has earned a ruling from the DC Circuit that certified its ability to go to court. But nine judges on the appeals court will now consider other preliminary questions related to the McGahn subpoena, such as whether the House has a law it can invoke in court that allows it to sue. The House also seeks to stop the administration from claiming blanket immunity from testimony for its top officials.
The previous ruling blocking a subpoena lawsuit, which the appeals court vacated on Thursday, had put the House in a bad position to enforce a subpoena. So the court reviving the case restores some power to the Democratic-controlled chamber.
Will McGahn ever testify?
Whether any of this will matter for McGahn himself is still unknown.
“If Trump loses (the election), that’s another question, I guess,” said Stanley Brand, a former House general counsel. “Then, does anyone care about McGahn anymore?”
Even the appeals court has raised the question. In its new order reviving the case, the court wrote that it seeks arguments on whether the House Judiciary Committee’s subpoena of McGahn expires at the end of the 116th Congress, which will happen at the end of the year.
The DC Circuit Court won’t hear arguments in the case until February.
In the past, Congress and the executive branch had largely avoided lengthy court standoffs over subpoena power.
“You never know. You can get the wrong answer and then you’re stuck with it,” Brand said.
But in the McGahn case, the House has come far enough in court to flesh out important questions about its limits. “They need to get an answer. They need to know where they stand going forward with this type of investigation,” he said. If not, he added, “it’ll come back at some point, and they’ll have to start the meter all over again.”
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