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Democrats Contemplate Impeachment Again in McGahn Brief Before Full D.C. Circuit


Democrats on the House Judiciary Committee filed a response brief Thursday in the long running, back-and-forth court battle over testimony from former White House counsel Don McGahn.

“Congress cannot effectively legislate, conduct oversight, or consider impeachment without information, including about Executive misconduct,” the 38-page brief begins. “When an Executive official defies a Congressional committee’s subpoena and prevents Congress from obtaining information, the committee suffers a concrete and particularized injury that courts can redress.”

Congressional Democrats have salivated over the prospect of McGahn testifying about his time in the Trump White House for years now. And they specifically aim to obtain the attorney’s impressions about an instance in which President Donald Trump allegedly ordered him to fire then-special counsel Robert Mueller.

McGahn flouted a congressional subpoena issued in 2019 and was backed up by the Department of Justice (DOJ). The DOJ argued on McGahn’s behalf that Article III of the Constitution prohibited the federal courts from resolving the interbranch impasse over his testimony.

In February of this year, a three-judge panel of the U.S. Court of Appeals for the District of Columbia agreed with McGahn and the DOJ by proclaiming that a dispute between two co-equal branches of government simply cannot be refereed by the third branch.

In mid-March, the D.C. court half-way reversed itself by acceding to a request from the Judiciary Committee that the entire roster of judges rehear the case to reach an outcome collectively. The court moved to vacate its own panel decision in the interim, and the ruling was widely viewed as a victory for congressional oversight.

Thursday’s reply brief fashions the committee’s argument as a basic appeal to the fundamental balancing function of the judicial branch.

Per that reply brief, at length:

The panel’s contrary decision upends separation-of-powers principles. Judicial resolution of subpoena disputes safeguards the separation of powers by ensuring that Congress can obtain information needed to perform its constitutional functions and serve as an effective check on the Executive. Yet the panel’s holding would encourage the Executive to defy Congressional subpoenas and refuse accommodation. The panel suggested that Congress could use political tools—such as contempt and even impeachment—to force compliance, but the constitutional brinksmanship envisioned by the panel would heighten interbranch conflict and undermine, not protect, the separation of powers. In any event, recent experience confirms that political tools cannot force an obstinate Executive to cooperate with legitimate Congressional inquiries.

Democrats savaged the three-judge panel’s “extraordinary conclusion” in the February ruling.

“[A]lthough federal courts routinely resolve subpoena disputes brought by private parties and the Executive, the panel held that federal courts are closed uniquely to Congress,” the filing noted. “That conclusion—which no other court has ever reached—is wrong.”

The since-vacated panel ruling had staked out territory advocating the political question doctrine by using language that called to mind the familiar conservative movement rebuke of judicial interference.

“Article III comes third for a reason,” the two-judge majority argued, “if Congress is ‘first among equals,’ the judiciary is last.”

The Democrats’ reply brief turns that attempt to simultaneously disclaim and use judicial power directly on its head.

“By depriving Congress of the judicial forum available to every other litigant to enforce subpoenas, the panel did not opt out of political disputes, but sided with the Executive,” the filing argues. “If affirmed, the panel’s decision would hamstring the legislative process and effectively eliminate Congressional oversight as we know it.”

Most of the filing is taken up with arguments advancing the idea that the House Judiciary Committee has standing to bring the lawsuit in the first place. One of the preferred ways for judges to dispense with legal arguments they don’t want to address on the merits is to craft whole-cloth reasons for why particular litigants are not entitled to judicial redress in the first place.

Democrats argue they have been harmed by McGahn’s refusal to abide by their subpoena requests because such legislative letters are the body’s “principal method of compulsory process.” A so-called “injury-in-fact” is a prerequisite to satisfying the occasionally stringent but inconsistently applied standing doctrine.

“The Committee has standing to challenge McGahn’s defiance of its subpoena,” the filing reads. “McGahn’s testimony will inform oversight and potential legislation designed to protect federal law-enforcement investigations from improper political interference. His testimony will also inform the Committee’s determination whether President Trump committed impeachable offenses in obstructing Special Counsel Mueller’s investigation and whether to recommend new articles of impeachment.”

Notably, Democrats argue, the DOJ’s argument–and that of the prior two-judge majority–is inimical to over a hundred years of combined judicial and non-judicial precedent. They say the DOJ’s position is another inversion of claims advanced by White House-friendly voices that Congress should simply work with the Trump administration to reach a conclusion without dragging the courts into the contretemps.

“[H]istory reveals that Congress had no need to bring such suits until more recently,” the filing notes. “Beginning with President Washington, the Executive for nearly two centuries overwhelmingly recognized Congress’s right to information and fully complied with requests or sought to accommodate Congress’s interests.”

“By contrast, in the past decades, Congressional committees have on several occasions sought judicial enforcement of their subpoenas where Executive officials have refused to comply,” the filing continues. “For nearly 50 years—from suits challenging President Nixon’s conduct during Watergate to today—this Court and others have uniformly held that committees have standing to do so.”

Thursday’s reply brief comes full circle by returning to primary constitutional building blocks.

“When faced with a request for information that would reveal misconduct, an Executive who ignores his constitutional obligations has no incentive to cooperate if the request cannot be enforced,” the brief notes.

Again the committee’s argument:

McGahn’s argument reflects a pattern of nonaccountability. Time and again, the Executive resists Congressional oversight by insisting that Congress may hold it accountable using other tools. But when Congress invokes those tools—the contempt power, the appropriations power, or even the impeachment power—the Executive insists that those tools are likewise improper. The system McGahn envisions is one that leaves Congress effectively powerless to hold the Executive accountable and would be unrecognizable to the Framers who designed our system of checks and balances.

Read the full court filing below:

House Judiciary’s Don M… by Law&Crime on Scribd

[image via Drew Angerer/Getty Images]

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