The U.S. Court of Appeals for the D.C. Circuit.
Washington CNN  — 

At the core of a dispute heard Tuesday tied to whether a former White House counsel must testify before the US House of Representatives and whether the President may divert funds for a border wall lies a deeper quandary for federal judges in the era of Donald Trump.

Would the involvement of judges, to referee such conflicts between Congress and the executive, preserve the constitutional separation of powers or thwart that balance?

Lawyers for the Democratic-led House argue that judges must intervene lest congressional power be diminished, while the Trump administration contends judges should stay out.

The urgency of the dispute cannot be overstated, for the cases at hand but also for what might develop in the future, particularly when government is struggling with effective responses to the Covid-19 crisis.

As the US Court of Appeals for the District of Columbia Circuit heard the paired cases, judges on both sides of the ideological divide observed that the Trump administration has shunned the usual mode of compromise and shown little regard for the oversight role of Congress.

The majority of the nine judges raised concerns for maintaining a balance among the branches and ensuring effective legislative leverage over an intransigent administration. But they plainly wrestled with how to limit disputes between Congress and the White House that might flood the courts at this tumultuous time.

Looming in the backdrop of Tuesday’s telephonic hearing was the US Supreme Court, which on May 12 will take up a different set of Trump-related controversies. The high court has issued a sudden order asking the parties in those disputes over House efforts to subpoena Trump financial documents to submit new filings addressing the justices’ authority even to resolve the cases.

The overall tension regarding the judiciary’s place in the American system of checks and balances was evident in the split opinions when a DC Circuit panel first ruled, in February, that it would not enforce the subpoena ordering former White House counsel Don McGahn to testify before a House committee. Trump told McGahn to refuse to comply with the subpoena related to a Russia investigation and the President’s alleged attempts to obstruct justice. Trump declared that his top presidential advisers have “absolute testimonial immunity.”

By a 2-1 vote, the DC Circuit panel concluded that constitutional separation of powers principles and historical practice barred judges from enforcing the subpoena. That opinion, written by Judge Thomas Griffith and since tossed out by the full DC Circuit hearing the case anew, said the Constitution gives judges the power to resolve disputes over individual rights, not institutional conflicts.

Griffith acknowledged in that opinion and in his questions on Tuesday that the executive branch could be engaged in serious obstruction but said that was not a matter for the courts.

Dissenting from the February ruling was Judge Judith Rogers, who asserted, “For the first time in our history, the President has met the House’s attempt to perform its constitutional responsibility with sweeping categorical resistance.”

She said the 2-1 Griffith majority “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.”

Rogers reinforced that theme during the give-and-take on Tuesday. And she appeared to find sufficient support among her colleagues for a role for judges to resolve at least some clashes between the branches.

If the court found that the House lacked legal “standing” to bring its case, Judge Patricia Millett observed, it could “unsettle” the separation of powers, rather than safeguard the respective powers.

Judge David Tatel asked whether the President’s positions were inconsistent. In the cases before the Supreme Court, Trump wants judicial intervention to block House committee subpoenas against his longtime accountant and banks.

Tatel pointedly questioned Deputy Assistant Attorney General Hashim Mooppan, representing the Trump administration, why in the McGahn and border wall cases it, instead, wants to keep the courts away.

Mooppan responded that the President is properly seeking judicial involvement in the Supreme Court disputes because he wants “to vindicate a personal interest,” not an institutional one. In the cases at the DC Circuit, Mooppan argued, members of Congress are trying to assert an institutional injury that is the domain of the political branches, as opposed to an injury tied to individual rights that would be the realm of the judiciary.

(Trump brought the cases now before at the Supreme Court to quash the subpoenas against his accountant and banks. The House filed the current DC Circuit disputes to enforce its subpoena and stop the President’s spending on the wall.)

Overall, Mooppan urged the DC Circuit to find that when Congress is locked in a conflict with the President, it should rely on “other tools” in its legislative arsenal. He said members of Congress could find leverage by withholding funding for a president’s agenda or blocking his nominees. If a president was ignoring the will of lawmakers across the board, Mooppan insisted, impeachment and removal from office would be a final resort.

During his time on the conference call, House counsel Douglas Letter countered that congressional subpoenas would become a “joke” if they could not be enforced in the courts. He said threats to shut down and ignore the President’s agenda have not meaningfully persuaded Trump.

Regarding the impeachment option Mooppan raised, Letter responded ruefully, “Been there. Done that.”