Updated Aug 31, 2020 - Politics & Policy

Appeals panel tosses House lawsuit to enforce McGahn subpoena

Don McGahn sits in a suit and tie

Don McGahn. Photo: Alex Wong/Getty Images

A D.C. Circuit Court of Appeals panel ruled 2-1 on Monday that House Democrats do not have the legal authority to enforce a subpoena against former White House counsel Don McGahn.

Why it matters: The majority opinion deals a severe blow to the House's investigative power, ruling that Congress must pass a law in order to enforce subpoenas in court. House Democrats on Monday immediately said they would appeal the decision and ask the full appeals court to rehear the case.

  • "This wrong-headed Court of Appeals panel ruling threatens to strike a grave blow to one of the most fundamental Constitutional roles of the Congress: to conduct oversight on behalf of the American people, including by issuing our lawful and legitimate subpoenas," Speaker Nancy Pelosi said in a statement.

The big picture: Democrats on the House Judiciary Committee have fought a lengthy battle to question McGahn — one of the most important witnesses in special counsel Robert Mueller's investigation — regarding President Trump's alleged attempts to obstruct justice.

What they're saying: "Because the Committee lacks a cause of action to enforce its subpoena, this lawsuit must be dismissed," the majority opinion reads.

  • "We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit."
  • "If Congress (rather than a single committee in a single chamber thereof) determines that its current mechanisms leave it unable to adequately enforce its subpoenas, it remains free to enact a statute that makes the House’s requests for information judicially enforceable."

The other side: "[T]he Supreme Court has explained that the powers of Congress enumerated in the Article I of the Constitution imply not only a right to information but also a right to seek judicial enforcement of its subpoena," one of the appeals judges wrote in a dissenting opinion.

The bottom line: The case will continue to be delayed and McGahn will, for the moment, not be forced to testify.

Read the ruling.

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