Bloomberg Law
Feb. 29, 2020, 4:34 AM

Trump Wins Court Ruling on Resisting Congressional Testimony (1)

Andrew Harris
Andrew Harris
Bloomberg News

Donald Trump defeated Democrats’ effort to force former White House Counsel Don McGahn to testify, in a court ruling that bolsters the president’s resistance to congressional oversight.

The federal appeals court’s ruling arrives too late to affect the impeachment process, which was resolved with Trump’s acquittal by the Senate earlier this month. But it could have an impact on other congressional probes -- a judge overseeing the House’s efforts to obtain Trump’s taxes scheduled a hearing for next week after having put that matter on hold awaiting a ruling on the McGahn case.

The appeals court in Washington Friday said it lacked jurisdiction to decide a dispute between the executive and legislative branches. “The Constitution does not vest federal courts with some ‘amorphous general supervision of the operations of government,’” Circuit Judge Thomas Griffith wrote for the majority, quoting in part from an earlier decision.

In her dissent, Circuit Judge Judith Rogers expressed concern that the White House would now be unrestrained in asserting privilege. The majority’s decision “all but assures future Presidential stonewalling of Congress,” she said.

Andy Grewal, a tax and administrative law professor at the University of Iowa, said the ruling will have implications for the Trump tax return case, as it also involves “a deeply debated and uncertain question” about Congress’ ability to sue the executive branch.

“In McGahn, the case is treated as the House suing the executive branch, even though McGahn is now a private person,” Grewal said. “And in the tax returns case, you have a lawsuit directly between the House and the Treasury.”

Additional Investigations

The tax records chase is one of the main threads for Democrats as they consider whether to pursue additional investigations of Trump after the GOP-controlled Senate acquitted him on two articles of impeachment stemming from his attempt to get Ukraine to seek damaging information on a political rival. Trump broke with four decades of tradition by refusing to release his tax returns as a nominee.

U.S. District Judge Trevor McFadden, whom Trump named to the bench, scheduled a hearing for next Thursday to resume consideration in the lawsuit brought by the House Ways and Means Committee against the Treasury Department and Internal Revenue Service seeking the president’s taxes.

McGahn, who stepped down as White House counsel in October 2018, figured prominently in Special Counsel Robert Mueller’s report on Russian interference in the 2016 election. The lawyer was a witness to a string of incidents that prompted Mueller to later say that he could not clear Trump of obstruction of justice.

The House subpoenaed McGahn to testify in April as part of its impeachment inquiry, but Trump ordered him to spurn their demand. The legislators voted to hold McGahn in contempt on June 11 and sued to compel his testimony two months later.

Absolute Immunity

Washington U.S. District Judge Ketanji Brown Jackson rejected the Justice Department’s arguments on the White House’s behalf and, in a Nov. 25 ruling, said McGahn was required to abide by the subpoena, calling the claim of absolute immunity “baseless.”

Friday’s decision overrules Jackson, who was a 2013 appointee of President Barack Obama.

The decision was along party lines. Griffith, who was appointed by George W. Bush, was joined in the majority by Circuit Judge Karen LeCraft Henderson, a George H.W. Bush appointee. Rogers was named to the court by Bill Clinton.

The Judiciary Committee’s press office didn’t immediately return a call seeking comment. Democrats could try to appeal the ruling to the Supreme Court.

“Today’s McGahn ruling confirms what Republicans have said all along,” said Representative Doug Collins of Georgia, the top Republican on the judiciary committee. “Getting executive branch information takes time and accommodations. Democrats threw a temper tantrum by demanding information in the manner, form, and forum of its choosing.”

House Speaker Nancy Pelosi said in a statement later Friday that the divided ruling “case does not contradict what the courts have continued to rule: that the president’s claims of ‘absolute immunity’ from Congress’s subpoenas are false.”

She added that the House would pursue a so-called en banc rehearing of the ruling before the full court.

Ignored Directive

In one June 2017 instance cited in the Mueller report, the president called McGahn at home and ordered him to fire Mueller for alleged conflicts of interest, according to the report. The lawyer ignored the directive, deciding he’d rather resign, according to the report. About six months later, Trump pressured McGahn to deny press reports of the incident.

Trump also directed McGahn to dissuade then-U.S. Attorney General Jeff Sessions from recusing himself from any role overseeing the special counsel’s investigation.

Responding to the House suit to compel McGahn’s congressional testimony, Justice Department attorneys argued the committee can’t sue the executive branch and, more significantly, that the former White House counsel was “absolutely immune from compelled testimony before Congress” as an immediate adviser to the president.

The lawmakers countered that the administration’s immunity assertion, if upheld, would cripple Congress’s ability to fulfill its oversight functions and to obtain information that may be relevant to an impeachment effort.

The appeals court panel heard arguments on Jan. 3.

(Updates with Pelosi comment, starting in 16th paragraph)

--With assistance from Laura Davison.

To contact the reporters on this story:
Andrew Harris in federal court in Washington at;
Erik Larson in New York at

To contact the editors responsible for this story:
David Glovin at

Anthony Lin

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