Perhaps you’ve read, a thousand times, that the Trump Administration has illegally resisted Congressional subpoenas to block former White House counsel Don McGahn from testifying. Well, a federal court ruled on Aug. 31 that House Democrats are the party exceeding their legal authority (Committee on the Judiciary v. McGahn).
Readers may not have heard about this amid the clamor of the presidential campaign. But a panel of the D.C. Circuit Court of Appeals ruled 2-1 that Rep. Jerrold Nadler’s House Judiciary Committee lacked a “cause of action” necessary to enforce its subpoena. The committee wants Mr. McGahn to testify about President Trump and special counsel Robert Mueller, though Mr. Mueller had full access to Mr. McGahn’s personal notes and referred on them in his 448-page report on the Russia collusion myth.
The legal simplicity of the majority opinion ought to embarrass Mr. Nadler and House lawyers. Judge Thomas Griffith didn’t need to invoke profound constitutional principles. He merely had to point out, first, that Congress itself has never granted an express cause of action to enforce a subpoena to the House—only to the Senate.
“Second, the Senate statute expressly excludes suits that involve executive-branch assertions of ‘governmental privilege,’” the judge writes. Perhaps Judge Griffith put “excludes” in italics because he was startled that a committee Chairman would sue without knowing the law. The judge observes dryly that “we should not ignore Congress’s carefully drafted limitations on its authority to sue to enforce a subpoena.”
Judge Judith Rogers writes in dissent that the House can properly infer a cause of action from its Article I powers. But this is the sort of claim that Democrats call a violation of the separation of powers when Mr. Trump invokes his inherent Article II authority. Judge Rogers may hope the liberal majority on the D.C. Circuit will take an appeal en banc, as they are increasingly doing in political cases.
But the plain language of the statute will be hard to overcome. Maybe next time Mr. Nadler, who is allegedly a lawyer, will pass a law giving the House a cause of action to enforce a subpoena before humiliating his committee and his branch of government in court.
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Appeared in the September 8, 2020, print edition.
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