As Scott noted this post, the U.S. Court of Appeals for the District of Columbia ruled yesterday that that Article III of the Constitution forbids federal courts from resolving the dispute between the House of Representatives and the executive branch over whether former White House Counsel Don McGahn must comply with a subpoena to testify before the House. The decision is, of course, a victory for President Trump. It means the House subpoena will not be enforced.
The vote was 2-1. Judge Thomas Griffith wrote the opinion for the court. Judge Karen LeCraft Henderson wrote a concurring opinion. Judge Judith Rogers dissented.
Judge Henderson’s opinion is less sweeping than Judge Griffith’s. Her opinion rejects the view that Article III of the Constitution precludes standing whenever the Congress, or a chamber thereof, asserts institutional injury in a dispute with the executive. It also rejects McGahn’s assertion of absolute testimonial immunity against compelled congressional process.
I listened to the oral argument of this case, and wrote about it here. My abiding impression is the brilliant job Hashim Mooppan, the Department of Justice lawyer, did in arguing the case.
As for the outcome, my impression is that the result is supported by the case law. However, I wonder whether this case law is leading to dubious results.
If it’s problematic from a policy/separation of powers standpoint for courts to rule in favor of one political branch in a dispute with another, why isn’t it at least as problematic for courts to rule, in effect, against both political branches, as courts do when they strike down enacted laws? Personally, I’m more comfortable with judges adjudicating disputes over subpoenas (even disputes between the two branches) than I am with judges striking down legislation passed by one branch and signed into law by the other (although judges must do so in some cases).
The majority points out that the political branches are capable of dealing with disputes like the one over the McGahn subpoena without court involvement. Congress can respond to the executive’s refusal to comply through measures like withholding appropriations, refusing to confirm the president’s nominees, delaying or derailing the president’s legislative agenda, or impeaching recalcitrant officers.
However, these remedies strike me as far more harmful to our Republic than having judges resolve a subpoena dispute. Moreover, in some cases the legislative body in question — the House or the Senate — will not be able to effectuate a particular remedial measure on its own.
To be clear, I’m not arguing that the panel reached the incorrect legal result. I’m not even sure that its result makes for bad policy. I’m just expressing unease with the result as a matter of policy — unease that I suspect many conservatives would share if the case involved the effort of a Republican House to secure testimony from the former White House Counsel in a Democratic administration.
Adding to my unease is the fact that many, me included, criticized the House’s second article of impeachment against President Trump — alleged obstruction of justice based on refusing to produce documents and witnesses — arguing that the remedy for the non-cooperation is to seek enforcement of subpoenas in court, not to impeach the president. Yet, the D.C. Circuit, at the urging of the administration, has now ruled that the judiciary can’t even consider whether to enforce the House subpoenas.
There’s no inconsistency between our argument against impeachment and the D.C. Circuit’s ruling. That ruling notwithstanding, it remains true that Trump ought not have been impeached for obstructing Congress before the House attempted to enforce the subpoenas in question.
I still don’t think Trump should be impeached for obstruction. However, the opinion of the court lists impeachment as a possible remedy for not complying with House-issued subpoenas.
Thus, while there’s no inconsistency here, there’s plenty of irony.
UPDATE: I should add that liberals have a clear majority on the D.C. Circuit. Thus, if the House files a petition for rehearing of the McGahn case, as I expect it will, there’s a fairly good chance the panel’s ruling will be overturned.
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