A federal appeals court convened a rare session of nine judges Tuesday to tackle an issue crucial to the future balance of power between the president and Congress: whether lawmakers can turn to the courts to enforce subpoenas aimed at exposing alleged wrongdoing in the executive branch.
The high-stakes battle centers on the House’s demand for testimony from President Donald Trump’s former White House counsel Don McGahn. It could decide one of the most urgent political issues of Trump’s presidency, namely whether the White House can block Congress from using the legal system to force crucial witnesses to testify about alleged obstruction of justice by the president himself.
While the case judges mulled over Tuesday could ultimately resolve a centuries-old debate about the relationship between the political branches, it seems increasingly unlikely to be definitively decided on a timeline that would produce testimony from McGahn or other witnesses in advance of the November presidential election.
That reality, as some congressional Democrats feared, represents a win for Trump, whom they accused of tying up their case in unending litigation to prevent McGahn from publicly testifying about presidential wrongdoing. McGahn was a central witness in the two-year investigation led by former special counsel Robert Mueller into the Trump campaign’s contacts with Russians in 2016.
He ultimately provided damning evidence that Trump repeatedly sought to obstruct the probe, though he declined to recommend criminal charges, citing a Justice Department prohibition on moving against a sitting president.
House Democrats are hopeful for a victory from the full appeals court, which is heavy with appointees of President Barack Obama and generally seen as more favorable to their arguments than the three-judge panel the House drew earlier this year and ruled against them 2-1.
But even if the D.C. Circuit ultimately orders McGahn to testify, Justice Department lawyers are expected to ask the Supreme Court to step in. The justices may well decide to freeze the status quo, putting potential high court arguments in the case off until the fall or winter and pushing off a final decision until well after Trump is sworn in for a second term as president or Joe Biden is sworn in for a first.
The appeals court heard the case Tuesday by teleconference due to the coronavirus pandemic. In addition, it considered the McGahn dispute in tandem with another legal fight between the House and the Trump administration: a suit seeking to block officials from spending money on Trump’s border wall project.
While a ruling here will most likely come before the election, either way it goes to the Supreme Court this fall and won't be decided until next spring. If Trump is still in the White House, we're going to have much larger problems than McGahn's testimony, I'm sure.