Late on Friday, a three judge panel from the DC Circuit Appeals Court effectively ended congressional oversight of the executive branch by refusing to enforce a valid legal subpoena from Congress for Don McGahn’s testimony. As the dissenting justice so eloquently put it, “Today the court reaches the extraordinary conclusion that the House of Representatives, in the exercise of its ‘sole Power of Impeachment,’…lacks standing under Article III of the Constitution to seek judicial enforcement of a subpoena in connection with an investigation into whether to impeach the President…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”.
The decision was by a 2–1 vote, with Bush I and II having appointed the justices in the majority. The majority ruled that the House had no standing to get the courts to enforce its subpoena of McGahn, writing that “Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute…The branches are thus locked in a bitter political showdown that raises a contentious constitutional issue: The Committee claims an absolute right to McGahn’s testimony, and the President claims an absolute right to refuse it. We cannot decide this case without declaring the actions of one or the other unconstitutional, and ‘occasions for constitutional confrontation. . . should be avoided whenever possible’”. In fact, the Court declined to uphold the President’s claim of testimonial immunity for McGahn, effectively negating the President’s claims, but refused to act upon that conclusion.
The absurdity of saying that the Court can not decide a case because that would mean determining that one side or the other was violating the Constitution is self-evident. That has been the function of the judicial branch since John Marshall declared that “It is emphatically the province and duty of the Judicial Department to say what the law is” in the seminal case of Marbury v. Madison in 1803. That interpretation of the role of the judicial branch was reiterated as recently as 2012 by Chief Justice John Roberts who declared that resolving disputes about the separation of powers is exactly what courts do. Of course, the Court also simply ignored the more recent precedent in which courts have interjected themselves into disputes between the legislative and executive branches, simply dismissing those decisions out of hand. The majority writes, “To be sure, as the Committee notes, courts in this circuit have agreed to resolve a handful of interbranch information disputes beginning in the 1970s”…but “the innovations of the 1970s shouldn’t displace the established practice of the 1790s”.
The majority’s absurdities continue as they expressed a fear that, if they decided this case, then, God forbid, they may have to decide other cases like it. They write, “Judicial entanglement in the branches’ political affairs would not end here. If the Committee can enforce this subpoena in the courts, chambers of Congress (and their duly authorized committees) can enforce any subpoena…We would be forced to supervise the branches, scrutinize their asserted constitutional interests, and elaborate a common law of congressional investigations…simply consider this case. If we order McGahn to testify, what happens next? McGahn, compelled to appear, asserts executive privilege in response to the Committee’s questions. The Committee finds those assertions baseless. In that case, the Committee assures us, it would come right back to court to make McGahn talk…The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often”.
In another remarkable statement, the majority restricts the breadth of its opinion, writing, “We conclude by noting a few limitations on the scope of this decision: First, we do not address whether a chamber of Congress may bring a civil suit against private citizens to enforce a subpoena”. Of course, McGahn is now a private citizen so it would seem remarkable that this case would not address the issue. The way the Court gets around this is by framing the case as the battle between the executive and legislative branches, rather than Congress simply subpoenaing a private citizen.
