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DC Circuit Hears Oral Arguments in Notable Separation of Powers Cases

By Joseph Fawbush, Esq. on January 06, 2020

On Friday, January 3, two D.C. Circuit Court of Appeals panels heard oral arguments regarding important separation of powers issues. The first involves a congressional subpoena of former White House counsel Don McGahn. The Committee on the Judiciary in the House of Representatives is seeking testimony from President Trump's former aide, who has so far refused to comply with the subpoena. The second involves redacted grand jury materials in Robert Mueller's report.

Judges Thomas Griffith and Judith Rodgers were on both panels; Judge Karen Henderson heard arguments in the McGahn case, while Judge Neomi Rao, a Trump appointee, was the third judge on the Mueller report case.

House Lawyers Argue McGahn's Testimony Still Relevant

District Court Judge Ketanji Brown Jackson sided with the Committee on the Judiciary in September, writing that “presidents are not kings" and that McGahn could be compelled to testify before the House. The D.C. Circuit issued a stay pending appeal.

Meanwhile, despite the failure of key members of the executive branch to testify before Congress during its investigation, the House impeached President Trump in December on formal charges of abuse of power and obstruction of Congress. Lawyers for the House argue that McGahn's testimony is still relevant and could affect President Trump's trial in the Senate. Both parties argued the case is not moot.

McGahn, who defied the subpoena at the direction of the Trump Administration, has said he would testify if the court orders him to. As yet, neither McGahn nor the Trump Administration has invoked executive privilege, instead arguing that presidential aides have absolute immunity from compelled congressional subpoenas.

The Argument

In 2008, former White House counsel Harriet Miers defied a Congressional subpoena when it sought testimony and documents regarding the forced resignation of nine United States attorneys. While the D.C. Court of Appeals did issue a stay of the lower court's enforcement in that case, the two sides ultimately resolved the issue without judicial involvement. Lawyers for the House Judiciary Committee argue that no court has ever granted a president or any presidential aide absolute immunity from a compelled process. The Justice Department – who is representing President Trump in both cases –argued that the Committee lacks standing to bring the case before the court, and that regardless, the House's subpoena of McGahn is unconstitutional, as it imposes a burden on the President that would impede the President's ability to exercise his duties.

Redacted Information in the Mueller Report

Also at issue is whether the House can see redacted information in the Mueller report concerning evidence provided to the grand jury. D.C. District Court Judge Beryl Howell ordered the Justice Department to hand over the materials in October, arguing in part that the materials were relevant to the House's impeachment inquiry. However, Justice Department attorneys argue that this rationale is no longer valid, since neither article of impeachment is based on Mueller's report. This led to the judges questioning whether the House is considering adding articles of impeachment. Douglas Letter, who argued on behalf of the Committee on the Judiciary, said that he had spoken to House Majority Leader Nancy Pelosi, who authorized him to represent her position that the House would consider additional articles of impeachment if further evidence warranted it.

If It's Happened Twice Before . . .

While the cases could impact the current impeachment proceedings, the D.C. Circuit's opinions may also have significant precedential value. Whether the House can enforce its subpoenas against the executive branch, and whether the judiciary should become involved in such an interbranch dispute, are important and novel constitutional issues.

The issue may not be resolved for some time, however, as an appeal to the Supreme Court is likely.

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