In a fractured set of opinions issued on Friday, two 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 legal 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 have no power to hear the dispute because it’s 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 (it’s why, for example, the Supreme Court in Rucho v. Common Cause refused to wade into partisan gerrymandering last year). McGahn’s Department of Justice lawyers didn’t raise the political question doctrine, apparently conceding (as the dissenting Judge Judith W. Rogers noted) 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 all attempts by the House of Representatives to gather information as a prerequisite to impeachment does not 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. If 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 was made up by Supreme Court justices—including conservative ones who claim to apply only the plain language of the Constitution. Griffith’s opinion adds yet another patch to the complex “standing” quilt.
In effect, Griffith abandons Congress to fend for itself, pointing to other possible ways it could enforce its constitutional power. Griffith’s list?
Congress (or one of its chambers) 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 in the first place on the theory that Congress lacks standing to sue. Nor is criminal contempt an option—unless one is naïve enough to believe that the Justice Department under Donald Trump would criminally prosecute Don McGahn for not testifying in compliance with Donald Trump’s directive that he not testify. The other contempt route is for the sergeant-at-arms of the House or Senate to physically arrest McGahn and put him in Congress’s “jail,” an option that hasn’t been invoked in over a century and for good reason: the trauma on the coordinate branches and the public would be incalculable. Certainly, allowing a federal court to resolve 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 in ways 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 difficult to prove a case without complete facts, which the likes of McGahn refused to provide.
Ironically, in pointing to impeachment as a proper remedy for obstruction of Congress by 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 go to court. Checkmate.
In a concurring opinion, Judge Karen LeCraft Henderson took pains to carefully apply the actual Supreme Court test for standing (which Judge Griffith did not), 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 is no absolute immunity from process for the president, as we know from the last two times presidents tried to ignore subpoenas (both Richard Nixon and Bill Clinton lost in the Supreme Court). The case law is also crystal clear that presidential helpers like McGahn get, at most, what’s called qualified immunity. In other words, had McGahn shown up and claimed privilege in response to particular questions, he may well have been protected from actually giving Congress any useful information. That he did not show up at all thrust America into a constitutional crisis—which the D.C. Circuit refused to even attempt to resolve.
Perhaps the saddest element of this decision is the nearly inevitable sense that it smacks of a political judgment—not a legal one. On the merits of the question of whether McGahn had at least to appear before legislators before refusing to testify, even Griffith would have likely had to side with House Democrats.
As Judge Rogers concludes, “The court removes any incentive for the 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, and with no other branch willing to enforce constitutional boundaries, the losers here are—once again—the American people.