Editor’s Note: In this weekly column “Cross Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
When the Court of Appeals for the District of Columbia on Tuesday rehears the legal dispute over a congressional subpoena to former White House counsel Don McGahn, the case will hardly be about McGahn at all.
Now, it is about something even more important.
The case will determine whether Congress can meaningfully hold the President and the Executive Branch accountable on issues much bigger than McGahn’s testimony – including the administration’s handling (or potential mishandling) of the coronavirus crisis.
First, a refresher. Shortly after the public release of special counsel Robert Mueller’s report in April 2019, the House Judiciary Committee issued a subpoena for testimony from McGahn. According to the Mueller report, McGahn witnessed several acts of potentially obstructive conduct by President Donald Trump. But the White House instructed McGahn not to comply with the subpoena, citing a novel legal doctrine of “absolute immunity” under which all Executive Branch employees would be free to disregard any congressional subpoena, for any reason.
After a delay of nearly four months, the House Judiciary Committee took the case to court. A federal district judge firmly sided with the House, ordering McGahn to testify and rejecting the administration’s “absolute immunity” argument as a “fiction” that gets the law “exactly backwards.” “Presidents are not kings,” the judge memorably wrote.
The administration appealed, and a three-judge panel issued a stunning ruling (by a two-to-one vote) reversing the district court and letting McGahn off the hook. The Court of Appeals panel didn’t so much rule as duck; it found that “we have no authority to resolve” the case, which is “unfit for judicial resolution.”
But now there are signs that the Court of Appeals might reverse itself, granting “en banc” review in which nine judges will rehear the case (seven of the nine are Democratic appointees; two additional Trump-appointed judges are recused and will not participate). Courts almost never grant en banc review, and the fact that the court did so here may suggest an uneasiness with the original panel’s ruling.
At the same time, the Supreme Court seems to be considering a similar issue. While the lower federal courts have uniformly held that House subpoenas seeking Trump’s tax returns from private banks are valid and enforceable, the Supreme Court has now asked the parties to brief whether it has legal authority to rule on the subpoenas. If the Court rules that it does not have such authority, then it – like the original Court of Appeals ruling in the McGahn case – will effectively permit the Executive Branch to defy any Congressional subpoena while the courts sit idly by.
Here’s what at stake: the ability of Congress to exercise meaningful oversight of the President, the White House and the Executive Branch. If the original ruling by the McGahn Court of Appeals – that the courts cannot get involved in an inter-branch subpoena dispute – stands then, as a practical matter, the Executive Branch is free to simply disregard any subpoena from Congress, on any topic, with no legal enforcement or consequence.
The potential implications are dizzying. For example, when Congress investigates the White House’s response to the coronavirus crisis, Congress surely will issue subpoenas for internal memos and emails and for testimony from key players. But if the White House is free to disregard those subpoenas – secure in the knowledge that the courts will decline to intervene – then we may never get answers to the most important questions: Who knew what about the coronavirus threat, and when, and what actions were or were not taken? These questions must be answered – to ensure accountability for past actions and to better equip us to respond to the next crisis.
McGahn’s testimony is now an afterthought, if it ever happens. More importantly, the case that bears his name will fundamentally alter our constitutional balance of powers. If the courts continues to duck responsibility, the White House may never have to fully answer to Congress and the American public for its actions (or inaction) on the coronavirus crisis – or any other issue for that matter.
Now, your questions
Angelo (Illinois): Will Trump’s executive order on immigration survive if challenged in federal court?
The New York Attorney General has stated that she is “ready to take legal action” against Trump’s new executive order, temporarily barring some people outside the United States from obtaining green cards (which confer legal permanent resident status), with several exceptions (for spouses and children of citizens and for medical workers, for example).
As a general matter, the president has broad authority over matters of immigration policy and enforcement. Federal courts often defer to the president’s policy decisions and do not casually second-guess those judgments.
In the closest recent precedent, the US Supreme Court, in 2018, upheld Trump’s revised “travel ban,” an executive order limiting the rights of nationals from certain foreign countries to enter and gain legal status in the United States. The Court subjected the executive order to “rational basis” review – asking not whether the president’s policy was wise or optimal, but rather whether it was “plausibly related to the Government’s stated objective to protect the country and improve vetting processes.”
Using that deferential standard, the Court upheld the executive order by a five-to-four margin. Since that decision, only one seat on the Court has changed: Justice Anthony Kennedy, who voted to uphold the travel ban, has been replaced by Justice Brett Kavanaugh, a conservative who seems likely to side with the President as well. It is difficult to predict what the lower federal courts might do, but ultimately, if the case reaches the Supreme Court, look for the Court to uphold Trump’s new executive order.
Brad (Michigan): If people disobey stay-at-home or quarantine orders, does the government actually have legal power to enforce them?
Yes. All 50 states have laws empowering governors or other officials to impose quarantine orders, including stay-at-home orders or other restrictions, in times of emergency. Violation of those laws is punishable by fines and, in about half the states, by potential arrest and criminal prosecution, typically for fairly low-level misdemeanor offenses (though such violations can be prosecuted as felonies in New Hampshire, South Carolina and Texas).
Enforcement of quarantine laws has varied state-by-state. In New Jersey, for example, authorities have issued over 1,700 citations for violations of stay-home orders. But just across the Delaware River in Pennsylvania, authorities have issued only “a handful” of citations, enforcing a stay-home order primarily with warnings.
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The bottom line: quarantine and stay-home orders are backed by law, and violations could be met with meaningful consequences.
Three questions to watch
1. What indications will the Court of Appeals give about its intentions during argument on the McGahn case?
2. Will Trump’s executive order on immigration face a legal challenge, and how will courts respond?
3. Will the Justice Department take legal action to enforce reopenings of religious institutions, like churches, as Attorney General William Barr’s office has already done in the case of one Mississippi church offering drive-in services?