If House Democrats want to hear testimony from Trump White House employees, they'll have to go to the Supreme Court or use inherent contempt in order to force it.
A federal appeals court in Washington, D.C., on Friday dismissed a lawsuit from House Democrats who were seeking testimony from former White House counsel Don McGahn as part of a broader investigation into President Donald Trump.
In a 2-1 decision by a three-judge panel, the U.S. Court of Appeals for the District of Columbia Circuit said it lacked jurisdiction to hear the case, agreeing with the Trump administration’s position that the U.S. Constitution forbids federal courts from resolving interbranch information disputes.
“The Committee’s suit asks us to settle a dispute that we have no authority to resolve,” the opinion states.
The House Judiciary Committee subpoenaed McGahn in 2019 as part of its investigation into Trump’s potential obstruction of former special counsel Robert Mueller’s Russia probe. McGahn previously told Mueller’s grand jury that Trump ordered him to direct the Department of Justice to fire Mueller in 2017 in order to end the probe. He did not carry out the order. This incident appeared as one of 10 potentially obstructive acts committed by Trump in Mueller’s final report.
Democrats sought to bring McGahn before the committee to get his testimony on this alleged obstruction. But the White House declared that the president and his direct aides had an “absolute immunity” from congressional investigation and ordered McGahn not to honor the subpoena. The administration never made a formal declaration of executive privilege over McGahn’s testimony.
The court said Democrats will just have to find some other way to force the administration to comply with their demands.
“Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees, harness public opinion, delay or derail the President’s legislative agenda, or impeach recalcitrant officers,” the court wrote. “And Congress can wield these political weapons without dragging judges into the fray.”
Democrats haven’t embraced the use of hardball legislative tactics to gain leverage. For a time last year, they entertained the idea of using their own power to arrest or fine recalcitrant administration officials, but ultimately rejected using the so-called “inherent contempt” power.
Democrats point out that they expected to lose this case on the merits cited, but then again, they could have always gone to inherent contempt and put McGahn in jail. The DC Circuit Court is straight up telling House Democrats that the nuclear option of inherent contempt is an option, but they will never use it.
Meanwhile, Trump knows now he can block any and every House subpoena, because at this point they are both meaningless and unenforceable.