- The Washington Times - Friday, February 28, 2020

A three-judge panel ruled Friday House Democrats can’t force former White House Counsel Don McGahn to testify over President Trump’s objection.

The federal appeals court in Washington, D.C., ruled 2-1 that the Constitution prevents courts from interfering in the interbranch dispute.

House Democrats had gone to court in August to try to enforce a subpoena for Mr. McGahn’s testimony. A district court sided with the lawmakers, but Mr. McGahn appealed.

“The Committee’s suit asks us to settle a dispute that we have no authority to resolve. The Constitution does not vest federal courts with some ‘amorphous general supervision of the operations of government,’” wrote Judge Thomas B. Griffith, a Bush appointee, siding with Mr. McGahn and dismissing the case.

Judge Karen LeCraft Henderson, a Bush appointee, concurred with the ruling, but Judge Judith Ann Wilson Rogers, a Clinton appointee, disagreed.



Judge Rogers said the case doesn’t reach “judicial encroachment” if the court were to weigh in on House Democrats’ ability to enforce a Congressional subpoena “because subpoena enforcement is a traditional and commonplace function of the federal courts.”

“The court removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties,” she wrote.

The court’s ruling bolsters Mr. Trump’s claim of executive privilege.

The House Judiciary Committee attempted to reach an agreement with the president’s former White House counsel following the special counsel probe by Robert Mueller into potential collusion between Russia and the 2016 Trump campaign.

The White House turned over documents to the committee as it conducted its investigation, but would not permit Mr. McGahn to testify, so the fight moved to court when House Democrats attempted to enforce their subpoena.

House Democrats had hoped for a win, and often cited the court battle during the impeachment of Mr. Trump, charging him with obstruction of Congress for not allowing lawmakers access to certain individuals and records.

A spokeswoman for the Justice Department, which represented the Trump administration in the case, called the ruling “historic.”

“Suits like this one are without precedent in our nation’s history and are inconsistent with the Constitution’s design. The D.C. Circuit’s cogent opinion affirms this fundamental principal,” she said.

Elizabeth Wydra, president of the progressive Constitutional Accountability Center, said the ruling weakens Congress’ ability to fulfill its duty of oversight.

“Whether in service of its investigative or legislative functions, Congress needs to be able to access information,” she said.

House Speaker Nancy Pelosi said the court ruling doesn’t mean the president can claim absolute immunity from congressional subpoenas, adding they will appeal for the full circuit court to rehear the case.

“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,” the California Democrat said.

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