A Federal Appeals Court, in Washington on Monday August 31st, Dismissed a Democratic-led House Committee Lawsuit for the Testimony of Former White House Counsel, Don McGahn, finding the Lawmakers Lack Legal Grounds to Enforce their Subpoena in Court.
The 2-1 Ruling by a Three-Judge Panel of the D.C. Circuit Court of Appeals was the latest Setback for Democrats in their yearlong Court Battle over a Subpoena issued to McGahn in April 2019.
The Full D.C. Circuit Ruled just Three weeks ago in the Case that the House has Standing to Sue to Enforce its Subpoena. But the Appeals Panel Ruled that the Lawmakers still Lack a Valid Legal Claim to make in Court, since Congress never Authorized the House to bring such Lawsuits.
"If Congress (rather than a single committee in a single chamber thereof) determines that its current mechanisms leave it unable to adequately enforce its subpoenas, it remains free to enact a statute that makes the House’s requests for information judicially enforceable," Judge Thomas Griffith, who was Appointed by Former President George W. Bush, wrote in the Majority Decision.
The decision, which can be Appealed to the Full Appeals Court, would make the House Powerless to Enforce its Subpoenas in Court.
The power of Congress to investigate and obtain information is very broad. While there is no express provision in the Constitution that addresses the investigative power, the Supreme Court has firmly established that such power is essential to the legislative function as to be implied from the general vesting of legislative powers in Congress.
Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.
How a particular committee decides to issue a subpoena is specific to each committee. Most committees of the House and Senate have included in their rules one or more provisions on committees’ and subcommittees’ power to authorize subpoenas by majority vote. Most House committee rules delegate to the committee chair the power to authorize subpoenas, and many of these rules require the chair to consult or notify the committee’s ranking minority member. Once authorized, a subpoena must be signed and delivered to the person named in it. Delivery of the subpoena to the person named in it means the person has been officially “served.”
The House Judiciary Committee has long sought McGahn’s Testimony over President Trump’s possible Obstruction of Former Special Counsel Robert Mueller’s nearly Two-year Investigation into Russia’s 2016 Election Interference and the Trump Campaign’s Contacts with Moscow.
The Trump Administration has Ordered McGahn to Refuse to Comply with the House Subpoena and Argued in Court that the President and his Close Advisers have Absolute Immunity to such Congressional Investigative Demands.
Monday's Decision did Not address Trump's Immunity Claims.
The Ruling comes a day after it was Revealed that McGahn, as White House Counsel, raised Concerns about the Security Clearance of the President's Son-in-Law and Senior Adviser, Jared Kushner, according to a Forthcoming Book.
UPDATE
Speaker Nancy Pelosi (D-CA, 12th District) said she would “immediately” Appeal the Decision to the Full Court, which has already Shot Down One similar Decision by this Three-Judge Panel on Different grounds. “If allowed to stand, this wrongheaded court of appeals panel ruling threatens to strike a grave blow to one of the most fundamental constitutional roles of the Congress: to conduct oversight on behalf of the American people,” Pelosi said.
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