In a fractured set of opinions issued on Friday, a couple of three judges on the United States Court of Appeals for the D.C. Circuit refused to consider whether former White House Counsel Don McGahn must respond to a congressional subpoena for his testimony.

As a legitimate and constitutional matter, the ruling is a stunner.

The lead opinion was written by Judge Thomas B. Griffith, an appointee of President George W. Bush who, in a feat of Cirque du Soleil-like mental gymnastics, held that federal courts don't have any power to hear the dispute since it is too political. He did this, notably, without invoking what's known as the \”political question doctrine,\” which is the legal means by which courts eschew politically fraught intra-branch fights . McGahn's Department of Justice lawyers didn't raise the political question doctrine, apparently conceding that it would have been an overreach.

Judge Griffith didn't pretend that Congress has no legal right to any information from McGahn. He held, rather, that Congress's \”institutional injury\” resulting from the White House's stonewalling of attempts by the House of Representatives to collect information as a prerequisite to impeachment doesn't constitute a \”case\” that judges can hear within the meaning of Article III of the Constitution.

This is dense and wonky separation-of-powers stuff. Whether it seems hard to make sense of what Griffith did, it is. The Constitution, of course, says nothing about an \”injury\” as a prerequisite to bringing a case in court. In a long series of cases that together constitute \”standing\” doctrine, that part is made up by Supreme Court justices-including conservative ones who claim that they can apply only the plain language from the Constitution. Griffith's opinion adds another patch to the complex \”standing\” quilt.

In effect, Griffith abandons Congress to look after itself, pointing to other possible ways it could enforce its constitutional power. Griffith's list?

Congress may hold officers in contempt, withhold appropriations, refuse to confirm the President's nominees, harness public opinion, delay or derail the President's legislative agenda, or impeach recalcitrant officers.


Congress cannot invoke the civil contempt power if courts can't hear its claims to begin with on the theory that Congress lacks standing to file a lawsuit. Nor is criminal contempt an option-unless the first is na\”ive enough to believe that the Justice Department under Donald Trump would criminally prosecute Don McGahn because of not testifying in compliance with Donald Trump's directive he not testify. The other contempt route is for the sergeant-at-arms of the House or Senate to physically arrest McGahn and set him in Congress's \”jail,\” an option that hasn't been invoked in over a century and for good reason: the trauma around the coordinate branches and the public could be incalculable. Certainly, allowing a federal court to solve an evidentiary question regarding immunity would work far lesser harm on our system of separated powers.

As for withholding appropriations, withholding confirmation of nominees, legislating with techniques that bind the president, or undergoing impeachment proceedings-Trump has already blown through those. He was impeached for refusing to release Senate-appropriated aid to Ukraine in violation of federal law, after all-an episode that involved his personal lawyer Rudy Giuliani's conducting of foreign policy outside the scope of the Constitution and federal law. And, as many people gleaned from the Senate impeachment trial, it's tough to prove a case without complete facts, that the likes of McGahn refused to provide.

Ironically, in pointing to impeachment like a proper remedy for obstruction of Congress through the president, Griffith's conclusion is precisely the opposite of what Trump's lawyers argued to the Senate when they claimed that the remedy for non-compliance was for Congress to visit court. Checkmate.

In a concurring opinion, Judge Karen LeCraft Henderson took pains to softly apply the actual Supreme Court test for standing , agreeing that Congress's injury was not enough to give the court jurisdiction. But remarkably, she went on to explain in no uncertain terms that-had the case actually been heard-McGahn would likely have lost. There isn't any absolute immunity from process for the president, as we know from the latter times presidents tried to ignore subpoenas . The case law is also crystal clear that presidential helpers like McGahn get, for the most part, what's called qualified immunity. In other words, had McGahn shown up and claimed privilege in reaction to particular questions, he may well happen to be protected from actually giving Congress any useful information. That he did not show up at all thrust America right into a constitutional crisis-which the D.C. Circuit refused to even make an effort to resolve.

Perhaps the saddest element of this decision may be the nearly inevitable sense that it smacks of a political judgment-not a legal one. Around the merits of the question of whether McGahn had at least to appear before legislators before refusing to testify, even Griffith might have likely had to side with House Democrats.

As Judge Rogers concludes, \”The court removes any incentive for that Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House's ability to perform its constitutional duties.\”

Without an accountable presidency, with no other branch willing to enforce constitutional boundaries, the losers here are-once again-the United states citizens.


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