The U.S. Court of Appeals for the DC Circuit issued important confirmation of Congressional authority on Friday when it ruled on Friday, 7-2 that the House has legal authority to use the courts to coerce McGahn in response to appear on a summons from the House Judiciary Committee. I testified repeatedly in Congress in support of the McGahn subpoena (including the Trump impeachment trial) and said that I believe that not only is the White House illegal, but it would ultimately fail in those efforts. I have long been an advocate for the reputation of Congressional as an academic, columnist, and litigator, including my previous representation of the United States House of Representatives in the Obamacare litigation (which we won for the House). I disagreed with an earlier decision against the house. I am obviously happy with the result in this case.
The White House may raise other issues that the appeals court left open to other legal arguments against McGahn's subpoena. This includes simply refusing to answer certain questions because of privilege or other objections.
However, the verdict reiterates this critical approach by the House to the courts in order to enforce compliance with his subpoenas. DC Circuit Judge Judith Rogers wrote, "In order to make grave allegations that a President committed" treason, bribery, or other serious crimes and misdemeanors, "the House must be given adequate information and it cannot be fully informed without having the power to compel the testimony of those who have relevant or necessary information. "
This is the second setback for the White House on the DC Circuit. Recently, the court undone a panel in the Michael Flynn case and returned his case to Judge Emmet Sullivan for a final resolution to the motion to dismiss the case. Although I strongly disagreed with Sullivan's actions (as did some of the judges on the Circuit), I have repeatedly stated that I expected the DC Circuit to reverse the matter and send it back to Sullivan. The reversal was not a confirmation of his controversial actions, but the basic principle that a court can decide and complete the protocol before the appeal. I agree with this decision, and I just hope that Sullivan addresses the concerns of many of us (including other lawyers) about his previous conduct and instructions on this case. These charges are dismissed and the DC Circuit makes it clear that the law in favor of firing is overwhelming. If Judge Sullivan doesn't dismiss the charges, he'll be set aside. The only question that remains is whether he will use this hearing for any other purpose than the application of this clear legal standard.
This is a far more important decision. It is extremely important to our constitutional system that the House can enforce such subpoenas. Indeed, I have an even broader view of legislation. I previously addressed this meaning in the testimony before Congress:
I have repeatedly testified to Congress about the most valuable change that would counteract the usurpation of legislative power: legislature or member. I have long campaigned for the right of members to request a judicial review of alleged violations of the separation of powers. While I understand the reluctance of the courts to examine political issues, a segregation-based challenge is not a political one, but a structural one that is put to the courts. Indeed, nowhere in the Constitution does "stand" appear as a term or even a reference. It is a creation of the courts and has changed radically over the years to create a growing barrier to access to the courts. We are now faced with a situation where serious alleged violations of the Constitution are being raised, but there is no one clearly empowered to compel a judicial review.
For those who support Madison’s democratic values, the DC Circuit’s decision is a triumph for the constitutional order.