Nine federal appeals court judges spent three hours Tuesday grilling a Trump administration lawyer and the general counsel for the House of Representatives about situations where Congress and a President could fight in court.
Or perhaps they couldn’t, ever, judges asked.
The historic US Court of Appeals for the District of Columbia Circuit hearing touched on some of the most significant constitutional questions the courts have ever weighed, in arguments on whether former White House counsel Don McGahn must testify under congressional subpoena about President Donald Trump and whether Trump can divert billions of dollars to build a wall on the US-Mexico border.
The hearing was held by teleconference due to the coronavirus pandemic.
The Democratic-controlled House of Representatives says the Trump administration has thwarted it more than any other previous administration, upsetting the checks and balances on the presidency. On the other hand, the Justice Department, representing Trump and his Cabinet, has argued the courts should stay out of the disputes, letting Congress use politics and legislation to force the Trump administration into compliance if it must.
Justice Department attorney Hashim Mooppan stuck with a broad assertion, that when Congress and the President disagree, there just isn’t a route to court for either to sue. But House general counsel Doug Letter reminded the court of instances in history where even kings had to be kept in line, and Congress should be able to sue.
Could Congress sue if the President started handing out $1,000 a month to Americans for the coronavirus, Judge Merrick Garland asked. Or if the Treasury Department started paying for people’s healthcare insurance at the President’s direction?
Could Congress sue if the President declared war without its authorization, Judge David Tatel asked.
No, Mooppan said, over and over again. There’d have to be a person or company injured by the President’s actions, he added them. In the case of coronavirus checks, perhaps it’d be a repo man or a debt collector who could bring a lawsuit, the Justice Department lawyer argued. It’s the executive branch’s job to enforce laws and subpoenas, and not Congress’s, he added.
“That is the separation of powers, that is the checks and balances that the founders were talking about, that is what ambition checking ambition is all about,” Mooppan said.
The hearing ended after about three hours, and the court did not rule.
Many of the judges asked pointed questions, especially of Mooppan, who at times raised his voice as judges pressed him over the phone.
But one, the appellate court’s chief judge Sri Srinivasan, said he thought the Justice Department’s stance was “a little bit odd” because it rested on Congress taking matters into its own hands, such as arresting executive branch officials that defied it. Srinivasan said allowing no lawsuits between branches “would create a regime in which in order to protect the separation of powers the impulse would be to go down a road that would create a greater separation of powers.”
Seven of the nine judges that heard the cases Tuesday were appointed by Democrats, including Garland, the Obama Supreme Court nominee whose confirmation Senate Republicans derailed with Trump’s election in 2016.
McGahn testimony fight
The arguments covered two cases: the appeal on the blocked subpoena of McGahn, whom the House sought to question about Trump’s actions during the Mueller investigation, and on the Trump administration’s decision to use billions of dollars more than the House intended to build the wall after calling the US-Mexico border an emergency for the Defense Department to handle.
The House Judiciary Committee has been trying to interview McGahn under oath since last spring, when the Mueller report came out, so it could continue to investigate Trump for obstruction of justice, even after his impeachment. The case had been a flashpoint during Trump’s impeachment, because it tested the White House’s successful blocking of administration witnesses during those proceedings.
At the height of the impeachment battle, District Judge Ketanji Brown Jackson ruled McGahn must testify and the White House had no ability to claim absolute immunity to protect its current or former officials from congressional subpoenas. “Presidents are not kings,” she wrote. But the order was sidelined with the appeals and impeachment ended with the Senate acquitting Trump without calling witnesses.
In the first go-around at the appeals court, a 2-1 panel said McGahn couldn’t be forced to testify. The two judges, Thomas Griffith and Karen Henderson, were the only Republican-appointed judges on the nine-member panel Tuesday.
The impeachment of Trump came up a few times during the arguments Tuesday. Judge Judith Rogers, who previously stood alone in siding with the House, pressed Mooppan on the House’s potential need for more information as it investigated special counsel Mueller’s findings of obstruction.
Mooppan, repeating an argument he’s made before, said the Congress could impeach a president even if it didn’t receive responses to subpoenas. (Obstruction of Congress was one of the articles of impeachment against Trump passed by the House.)
Letter later pointed out that past presidents gave Congress even requested documents during impeachment, which the Trump White House also had stonewalled. “How can that possibly be the right answer?” Letter said about the Justice Department’s argument to impeach even without a full fact-finding. “You can’t impeach without the information.”
Two Trump-appointed DC Circuit judges, Neomi Rao and Greg Katsas, who along with the nine would compose the full court, did not hear the case after apparently recusing themselves.
Border wall fight
In the border wall case, Congress’ authority to force the administration’s approach came up again before the DC Circuit, regarding how the House appropriated funding to various executive agencies.
After Congress approved $1.375 billion for border wall construction, the Trump administration declared a national emergency at the southern border, adding billions of dollars to the amount it would use for the wall.
District Judge Trevor McFadden, a Trump appointee, last year refused to stop the administration from using the money, as the House had requested, in essence ruling for the administration.
“Congress has several political arrows in its quiver,” McFadden wrote, adding that “this lawsuit is not a last resort for the House.”
When the court ultimately rules, whichever side loses is likely to head to the Supreme Court.
UPDATE: This story and headline have been updated with details from oral arguments.
CNN’s Austen Bundy contributed to this report.