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Court rules Trump lawyer can ignore congressional subpoena

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Via Financial Times

Democrats investigating Donald Trump suffered a big setback on Friday as a federal appeals court ruled they could not sue to enforce a congressional subpoena seeking testimony from the president’s former White House counsel.

The DC Circuit Court of Appeals threw out a lawsuit filed by the Democratic-controlled House judiciary committee, which sought to compel Don McGahn, who was the top lawyer in the White House, to testify about Mr Trump’s conduct.

The 2-to-1 decision was a significant victory for the president, who has aggressively challenged efforts by Democratic investigators to delve into his administration and business affairs.

Judge Thomas Griffith said in the court’s opinion that the House judiciary committee had no right to ask a federal court to resolve a dispute for information between Congress and the White House.

He wrote that the courts could not act as “an ombudsman for interbranch information disputes” and warned that ruling otherwise would invite an avalanche of litigation.

“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,” he wrote.

The ruling is a serious blow to efforts by congressional committees to use litigation as a tool to wrest information from a White House determined to resist their investigations. In recent decades, Congress has increasingly turned to the courts in its battles with the executive branch.

Mr McGahn emerged as a key witness in the justice department’s investigation into whether Mr Trump obstructed justice by improperly attempting to block Robert Mueller’s investigation into Russian meddling in the 2016 presidential campaign.

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Mr McGahn told federal prosecutors that Mr Trump had ordered him to fire Mr Mueller, the justice department special counsel appointed to examine links between the 2016 Trump campaign and Russia.

House Democrats have sought to get more details from Mr McGahn on the president’s behaviour, but Mr Trump had ordered the former White House counsel not to comply with the House Judiciary committee’s subpoena. Democrats sued to force his appearance and won an initial victory at the district court.

Mr McGahn’s case is just one of several legal battles between Mr Trump and Democrats who launched numerous investigations into the president after winning back the House of Representatives in 2018.

Next month, the Supreme Court will hear arguments in three cases involving the president’s taxes and financial records. Those cases involved subpoenas to banks and an accounting company that worked with Mr Trump, rather than to current or former government officials.

An attorney for Mr McGahn did not immediately return a request for comment on Friday’s ruling. Spokespeople for the Department of Justice, White House and Jerrold Nadler, the Democratic chairman of the House Judiciary committee, did not immediately respond to requests for comment.

The president has adopted a posture of broadly rejecting attempts by House Democrats to force his top advisers to testify as part of their investigations.

In the president’s recent impeachment investigation and trial, Democrats accused him of obstruction for instituting blanket resistance to any congressional subpoenas.

Mr Trump was ultimately acquitted by the Republican-controlled Senate after a trial. Following his acquittal earlier this month, he has retaliated against any officials who testified in the impeachment investigation.

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Judge Griffith, an appointee of George W Bush, said in the opinion on Friday that the courts “have no authority to resolve” disputes for information between Congress and the White House.

Instead, he argued that Congress must rely on its political powers to force compliance, including withholding funding, derailing the president’s legislative agenda and impeachment.

“Adjudicating these disputes would displace this flexible system of negotiation, accommodation, and (sometimes) political retaliation with a zero-sum game decided by judicial diktat,” he wrote.

The decision did not address whether Congress could sue private citizens to enforce a subpoena. At oral arguments, the Department of Justice argued that Congress could never sue in federal court.

In a concurring opinion, Judge Karen LeCraft Henderson, an appointee of George HW Bush, suggested there might be situations where Congress could bring an interbranch dispute to the courts but said it was for the Supreme Court to “fling that door open”.

She also took aim at Mr Trump’s aggressive resistance of congressional oversight, writing that “a categorical refusal to participate in congressional inquiries strikes a resounding blow to the system of compromise and accommodation that has governed these fights since the republic began”.

Judge Judith Rogers, who was appointed by Bill Clinton, decried the majority’s decision as one that would hobble Congress.

The ruling “all but assures future presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties”, she wrote in a dissent.

House Democrats can appeal against the decision to the full panel of 11 judges who sit on the DC Circuit Court of Appeals, widely regarded as the US’s second most powerful court, or directly to the US Supreme Court.

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