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Appeals Court Rules Against House Democrats In Fight For Don McGahn’s Testimony

Chuck Ross on February 29, 2020

A federal appeals court dealt House Democrats a heavy blow on Friday, ruling in favor of President Donald Trump in his efforts to prevent former White House counsel Don McGahn from complying with a congressional subpoena for his testimony.

In a 2-1 decision, the U.S. Court of Appeals for the District of Columbia overturned a lower court’s decision to force McGahn to provide testimony and documents to the House Judiciary Committee as part of an investigation related to the findings of the special counsel’s investigation.

Trump had directed McGahn, who met extensively with the special counsel’s office, not to comply with the subpoena, saying that the former White House lawyer had “absolute immunity” from congressional subpoenas. The House Judiciary Committee sued McGahn to force him to provide testimony.

The ruling, if it stands, will significantly limit Congress’s oversight power related to the executive branch. Democrats have filed several lawsuits against Trump and his administration to force cooperation with subpoenas. The House Ways and Means Committee has sued Trump and his family’s business for tax filings.

In an opinion for the majority obtained by The New York Times, Judge Thomas Griffith cautioned against the judiciary becoming involved in political squabbles between the legislative and executive branches, but said that Congress maintains significant power over the administration.

“The absence of a judicial remedy doesn’t render Congress powerless. Instead, the Constitution gives Congress a series of political tools to bring the Executive Branch to heel,” wrote Griffith, who was appointed by President George W. Bush.

“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.”

“And Congress can wield these political weapons without dragging judges into the fray.”

House Speaker Nancy Pelosi said Democrats will appeal the decision.

“Today’s split Court of Appeals ruling in the McGahn case does not contradict what the Courts have continued to rule: that the President’s claims of ‘absolute immunity’ from Congress’s subpoenas are false,” Pelosi said in a statement after the ruling.

She said the House will seek a hearing before all judges on the federal appeals court in Washington.

“We will continue to honor our responsibility to exercise our constitutional authority to conduct oversight on behalf of the American people, including by issuing our lawful and legitimate subpoenas,” she added.

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