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Photo: Alex Wong / Staff

Democrats in the House lost an appeal to force former White House counsel Don McGahn to comply with a subpoena, Politico was the first to report.

Why it matters: McGahn was seen as a crucial witness in the House investigation into whether President Trump tried to obstruct the Mueller inquiry into Russian interference in the 2016 presidential election . The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 on Friday that it did not have the authority to resolve the dispute between the executive and legislative branches.

The state of play: The decision overturns a district court ruling in November that compelled McGahn to testify before the House Judiciary Committee. But the Justice Department appealed that ruling and won in the higher court Friday.

Judge Thomas Griffith, in his majority opinion, cautioned that imposing the committee’s subpoena would amount to overreach by "unelected judges" — and risk politicizing the judicial branch.

“The Committee’s suit asks us to settle a dispute that we have no authority to resolve. The Constitution does not vest federal courts with some ‘amorphous general supervision of the operations of government,’”
"If federal courts were to swoop in to rescue Congress whenever its constitutional tools failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual 'overseer[s]' of our elected officials. That is not the role of judges in our democracy, and that is why Article III compels us to dismiss this case,"
— Judge Thomas Griffith in the majority opinion

Judge Judith Rogers, a Bill Clinton appointee, was the lone dissenter, arguing the majority's finding could set precedent for presidents to block oversight requests from the legislative branch with impunity.

What they're saying: “We are extremely pleased with today’s historic ruling from the D.C. Circuit recognizing that the House of Representatives cannot invoke the power of the courts in its political disputes with the Executive Branch," said Justice Department spokeswoman Brianna Herlihy.

"I strongly disagree with today's split decision. It is fundamentally hostile to reason and precedent, as the dissent recognized. If upheld, it would destroy the power of Congress to gather information and hold this or any future administration accountable ... Now more than ever, the courts cannot abandon their responsibility to resolve legal disputes involving the President. The Judiciary Committee will work in the coming days with House leadership and the Office of the General Counsel to pursue further review and to seek rehearing en banc before the full D.C. Circuit."
— House Judiciary Committee Chairman Jerry Nadler, in a statement

What's next: The ruling could still face additional appeals, including to the Supreme Court, per CNN.

Go deeper

Updated 2 hours ago - Politics & Policy

Omicron dashboard

Illustration: Brendan Lynch/Axios

  1. Health: Pfizer and Moderna boosters overwhelmingly prevent Omicron hospitalizations, CDC finds — Omicron pushes COVID deaths toward 2,000 per day — The pandemic-proof health care giant.
  2. Vaccines: The case for Operation Warp Speed 2.0 — Starbucks drops worker vaccine or test requirement after SCOTUS ruling — Kids' COVID vaccination rates are particularly low in rural America.
  3. Politics: Biden concedes U.S. should have done more testing — Arizona says it "will not be intimidated" by Biden on anti-mask school policies — Federal judge blocks Biden's vaccine mandate for federal workers.
  4. World: American Airlines flight to London forced to turn around over mask dispute — WHO: COVID health emergency could end this year — Greece imposes vaccine mandate for people 60 and older — Austria approves COVID vaccine mandate for adults.
  5. Variant tracker

Arizona governor sues Biden administration over COVID funds tied to mandates

A teacher prepares a hallway barrier to help students maintain social distancing at John B. Wright Elementary School in Tucson, Arizona, on Aug. 14, 2020. Photo: Cheney Orr/Bloomberg via Getty Images

Arizona Gov. Doug Ducey (R) filed a lawsuit Friday against the Biden administration for ordering the state to stop allocating federal COVID relief funds to schools that don't comply with public health recommendations such as masking, the Arizona Republic reports.

Why it matters: The Treasury Department said last week that the state would have to pay back the money if Ducey does not redesignate the $173 million programs to ensure they don't "undermine efforts to stop the spread of COVID-19."

Federal judge blocks Biden's vaccine mandate for federal workers

President Biden speaking from Eisenhower Executive Office Building on Jan. 21. Photo: Yuri Gripas/Abaca/Bloomberg via Getty Images

A federal judge in Texas blocked the Biden administration from enforcing its coronavirus vaccine mandate for federal workers on Friday, citing the outcome of last week's Supreme Court ruling that nullified the administration's vaccine-or-test requirement for large employers.

Why it matters: It's a blow to President Biden's efforts to increase the U.S.' vaccination rates, though much of the federal workforce has already been vaccinated against the virus.