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House Dems Ask Full Court to Rehear Don McGahn Case, Suggest Arrests Can Be Made


House Democrats on Friday asked for all of the judges on the U.S. Court of Appeals for the District of Columbia to rehear the case of former White House counsel Don McGahn, after a three-judge panel last week ruled that federal courts are prohibited from resolving subpoena disputes between the legislative and executive branches. The Court’s initial decision severely curbed Congress’s executive oversight capabilities and the ultimate outcome of the case could have significant implications on the separation of powers among the nation’s three branches of government.

House General Counsel Douglas Letter railed against the appellate panel’s initial decision, arguing that it directly conflicted with the law and legal precedent established by the Court.

“This unprecedented ruling compels the attention of the full Court. The panel decision conflicts with D.C. Circuit precedent, prevents the House from carrying out its function as a check on the power of the Executive, and undermines Congress’s authority to fulfill its Article I responsibilities,” he wrote. “Present circumstances—in which the President has announced broadscale defiance of Congress’s oversight power— underscore how dramatically this ruling could upset the constitutional balance of powers.”

In an 88-page decision, the appellate panel voted 2-1 that the court could not force compliance with a House subpoena for McGahn’s testimony in the impeachment inquiry of President Donald Trump over the objections of the White House, stating that “Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.”

The appellate panel also said that judicial enforcement is not required where “the Constitution gives Congress a series of political tools to bring the Executive branch to heel,” such as arresting White House employees, an option Letter argued should not be proposed lightly, as it would invite “constitutional brinksmanship” and “severe economic damage.”

“The House could direct its Sergeant at Arms to arrest current and former high-level Executive Branch officials for failing to respond to subpoenas, after which the legal issues dividing the branches would then be litigated through habeas actions,” he wrote. “But arrest and detention should not be a prerequisite to obtaining judicial resolution of the enforceability of a Congressional subpoena. The House could alternatively use its appropriations power to shut down the Government in response to Executive stonewalling. But incurring the severe economic damage of a government shutdown would not be effective—and should not be required—for the Committee to secure information.”

University of Iowa law professor Andy Grewal said that the full court is likely to re-hear the highly consequential case. He noted, however, that regardless of the outcome the case will likely be the Supreme Court’s problem to solve.

In a footnote, Democrats also repeated a threat that McGahn’s testimony may lead to a second impeachment of President Trump.

Read the House’s full petition below:

McGahn Petition for Rehearing en Banc 3.6.20 – FINAL by Law&Crime on Scribd

[image via Saul Loeb-Pool_Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.