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Lawyers Say Don McGahn Ruling Is One Step Closer Towards American Monarchy


Congress cannot enforce its duly-authorized subpoenas against the executive branch using the judicial branch, according to a blockbuster federal court ruling released late Friday afternoon that shocked and appalled several legal experts.

In the case stylized as Committee on the Judiciary v. Donald F. McGahn, the U.S. Court of Appeals for the District of Columbia ruled that former White House counsel Don McGahn did not have to abide by a congressional subpoena issued by the House Judiciary Committee during last year’s failed impeachment-and-removal effort.

The lengthy 88-page decision contains a wealth of controversial legal material–spanning the decision, a concurrence and a dissent–for scholars and lawyers to agree with and object to but the basic reasoning for the court’s opinion is that the question itself is simply non-justiciable. Why? Because it’s a dispute between two co-equal branches of government and the judiciary, being the third equal branch, is not entitled or equipped to settle the situation here.

“The Department of Justice (DOJ), on behalf of McGahn, responds that Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute,” two of the judges declared. “We agree and dismiss this case.”

The decision goes on to rebuke judicial interference:

When a litigant asks a federal court to resolve a dispute, the Constitution requires that court first to decide whether the matter is a “Case” or “Controversy” within the meaning of Article III. This limitation is essential to the democratic structure of the Constitution enacted by “We the People” in 1789. Compared to Congress and the President, unelected and unaccountable federal judges sit at the furthest remove from the citizenry. To the Framers, “[n]o liberty was more central than the people’s liberty to govern themselves under rules of their own choice.” And those rules must be made by the people’s politically accountable representatives, not by life-tenured judges. Article III comes third for a reason; if Congress is “first among equals,” the judiciary is last.

Myriad legal experts and longtime critics of the White House slammed the court’s decision as a deeply frustrating bar on congressional authority, and essentially a blank check for President Donald Trump–and perhaps all future occupants of 1600 Pennsylvania Avenue–to do whatever they please.

Harvard Law Professor Laurence Tribe shared his thoughts via email:

I found the court’s opinion wholly unconvincing, the concurring opinion transparently forced, and the dissent at least initially persuasive. The net effect of this circuit court decision, if upheld by SCOTUS, would be to destroy the vital impeachment power altogether whenever a president digs in and essentially dares the country to “come and get me while I hold all the evidence that proves my guilt of the highest crimes imaginable.” That just cannot be the way our Constitution was designed to work. It was not a suicide pact. We can only hope that Chief Justice [John] Roberts isn’t ready to sign on to so lawless a vision of our republic.

National security attorney Bradley P. Moss offered an historical allusion to the ancien regime and America’s own troubled past.

Richard Nixon’s lawyers infamously once told the courts that, in their client’s view, he was effectively King Louis XIV, albeit with term limits and subject to impeachment,” Moss told Law&Crime in an email. “With this ruling today, Donald Trump has taken yet another step to make that dream closer to a reality for the Office of the Presidency and provided further legal shielding for the Executive Branch from any outside scrutiny.”

Former federal prosecutor Renato Mariotti neutrally tweeted the upshot:

The federal court of appeals in D.C. holds that the courts can’t enforce Congressional subpoenas against the Executive branch. The judges conclude it would be too messy for courts to get involved in a political battle, and that the House can use other power to enforce subpoenas.

What other powers are those? The dissent complains that additional remedies are effectively neutered absent majorities in both chambers of Congress. The majority dismisses that line of thought.

“[M]any of the remedies can be exercised without majorities in both chambers,” the judges note. “Most appropriations must be approved by the House and Senate every year. A censure vote takes a bare majority from either chamber. And Members of Congress can denounce the Executive Branch from their own bully pulpits.”

Attorney and impeachment expert Ross Garber noted:

But there’s also, technically, another option because Congress has its own police force.

This force is overseen by the House Sergeant-at-arms. Law&Crime pressed the issue here.

Arizona-based defense attorney and legal blogger @bmaz said that using the sergeant-at-arms to lock scofflaws up–which is what happens to normal people who don’t work for the White House when they thumb their noses at subpoenas–is a viable and valid option that’s been used in the past. But that it presents issues in practice.

“Two problems: normal people do not have security details, and there is no place certain to lock them up,” he told Law&Crime in a message. “The ‘jail in the Capitol basement’ does not exist. Would have to contract with DC Metro [police] I guess. In one case, they were literally interned in a hotel by my recollection.

“I’ve no problem rolling these clucks up,” bmaz continued. “But it is not that easy. The House Sgt at Arms [is] not really set up for that. Then where [do] you take them? Then what? Who fights the immediate Habeas action?”

Citizens for Responsibility and Ethics in Washington senior adviser and former White House ethics lawyer Walter Shaub said that such hypothetical situations were not helpful and that it wasn’t likely the congressional law enforcement office would snatch “cabinet officials off the street.”

But such incidents have happened before. And if the issue is so important–and many of those who offered their opinion claimed that the issue was of the utmost–then why not try it again.

“Because what seemed an acceptable form of congressional coercion in the 1930s might well seem way too crude in the 2010s,” Tribe admitted.

[image via Drew Angerer/Getty Images]

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