The good news is that House Democrats can enforce subpoenas against former Trump White House officials like former WH Legal Counsel Don McGahn. The bad news, McGahn also gets to challenge that subpoena in court, and is doing so.
House Democrats can sue to force President Trump’s former White House counsel Donald McGahn to comply with a congressional subpoena, a federal appeals court ruled Friday.
In a 7-2 decision, the full U.S. Court of Appeals for the D.C. Circuit affirmed Congress’s oversight powers and said the House has a long-standing right to force government officials to testify and produce documents. The ruling came in one of a set of historic clashes between the White House and Democratic lawmakers.
The “effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary,” Judge Judith W. Rogers wrote for the majority.
The decision is a legal victory for House Democrats, but the ruling does not mean that McGahn will immediately appear on Capitol Hill. The court sent the case back to the initial three-judge panel, which had ruled against the House, to consider McGahn’s other challenges to the subpoena. The timeline makes it unlikely that the case will be resolved before Congress adjourns in January and the subpoena expires.
The opinion also cleared the way for a second House lawsuit, finding that lawmakers are not barred from going to court to challenge the Trump administration to block the diversion of billions of dollars to build the president’s signature southern border wall.
House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), whose panel issued the subpoena, said the decision in the McGahn case “strikes a blow against the wall of impunity that President Trump has tried to build for himself.”
He pointed to a pair of Supreme Court decisions in July rejecting the president’s claims of sweeping immunity from investigations by a state prosecutor and Congress.
“No one—not even the President—is above the law,” Nadler said in a statement.
In response to the rulings, Justice Department spokeswoman Kerri Kupec said, “While we strongly disagree with the standing ruling in McGahn, the en banc court properly recognized that we have additional threshold grounds for dismissal of both cases, and we intend to vigorously press those arguments before the panels hearing those cases.”
In other words, the clock will run out before this even gets to the Supreme Court, and I suspect in any future deliberations where the House or Senate of the opposite party of the White House issues subpoenas, they can be run out within the two years of any Congress with this process.
Should Trump win in November, or if Biden wins and the GOP still controls the Senate (both I figure are about 25% chances), we will see this fight play out again in 2021 and 2022.
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