The House of Representatives can sue to force former White House counsel Don McGahn to testify, a federal appeals court ruled Friday, but McGahn can continue to challenge the House’s subpoena and likely will not have to appear anytime soon.
A divided US Court of Appeals for the District of Columbia Circuit said McGahn’s refusal to testify is grounds for the House to sue.
The ruling is a win for Congress as a whole, emphasizing that it can sue to take an administration to court when there’s a standoff between the branches, and a loss for President Donald Trump and the administration’s attempt to expand executive powers.
But in letting McGahn continue to challenge the subpoena on other grounds, the practical impact is that the court case is ongoing and he may not have to testify before the election.
Friday’s appeals court ruling was 7-2. Two Trump-appointed DC Circuit judges, Neomi Rao and Greg Katsas, did not hear the case after apparently recusing themselves.
House Democrats say the Trump administration has thwarted Congress more than any previous one, upsetting the checks and balances on the presidency and standing in the way of congressional investigations and lawmaking.
The House Judiciary Committee has been trying to interview McGahn under oath since spring 2019, and Democrats say they want to question him about potentially obstructive behavior from the President during the Russia investigation, which McGahn witnessed and had disclosed to special counsel Robert Mueller.
The court on Friday reiterated that Congress has the legal right to bring the challenge consistent with the separation of powers.
“Each House of Congress is specifically empowered to compel testimony from witnesses and the production of evidence in service of its constitutional functions, and the recipient of a subpoena is obligated by law to comply,” the court held in the majority opinion by Judge Judith Rogers.
“The ordinary and effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary,” the opinion adds.
The Justice Department, representing Trump and his Cabinet, had argued the courts should stay out of the disputes, letting Congress use politics and legislation to force the administration into compliance if it must.
The administration will continue their effort to stop McGahn from appearing.
“While we strongly disagree with the standing ruling in McGahn, the en banc court properly recognized that we have additional threshold grounds for dismissal of both cases, and we intend to vigorously press those arguments before the panels hearing those cases,” said Justice Department spokeswoman Kerri Kupec.
The White House lost at the trial-court level in the McGahn case. The House received an emphatic opinion from the judge, who wrote, “Presidents are not kings.”
House Judiciary Committee Chairman Jerry Nadler on Friday said the “decision strikes a blow against the wall of impunity that President Trump has tried to build for himself. And it reaffirms the core principle behind the Supreme Court’s rulings last month: No one – not even the President – is above the law.”
The New York Democrat added, “We look forward to the favorable resolution of the remaining issues before the DC Circuit in short order.”
Dissenters note practical impact on McGahn testimony
Two dissenting judges, Karen LeCraft Henderson and Thomas Griffith, said the majority opinion will only lead to more lawsuits and delay McGahn’s testimony.
The majority opinion “enlarges the Judiciary’s power to intervene” in battles between Congress and the White House and “opens the door” to future disputes that should be left to the political branches, Henderson wrote.
Griffith wrote that ultimately Congress won’t benefit from the majority’s decision because in the future, parties will race to court instead of attempting to reach an accommodation within the political branches.
“The majority’s ruling will supplant negotiation with litigation, making it harder for Congress to secure the information it needs,” he said.
Griffith also noted that because the majority only ruled on the procedural issue of whether Congress had the right to bring the challenge, other issues are still left for resolution in the lower courts.
“Because the majority declines to decide whether the Committee has a cause of action and whether it should prevail on the merits, the chances that the Committee hears McGahn’s testimony anytime soon are vanishingly slim,” he said.
This story has been updated with details from the ruling and reaction.
CNN’s Evan Perez contributed to this report.