A federal appeals court on Friday upheld the House’s subpoena of former White House counsel Don McGahn, ruling that Congress has the right to enforce its subpoenas in court.
The 7-2 decision from the full D.C. Circuit Court of Appeals reverses an earlier ruling from a divided three-judge panel that declared that congressional subpoenas were essentially unenforceable.
“The Constitution charges Congress with certain responsibilities, including to legislate, to conduct oversight of the federal government, and, when necessary, to impeach and remove a President or other Executive Branch official from office,” Judge Judith Rogers wrote in the majority opinion. “Possession of relevant information is an essential precondition to the effective discharge of all of those duties.”
The House Judiciary Committee subpoenaed McGahn last year as part of an effort to follow up on the former special counsel’s investigation into Russian meddling in the 2016 election. That investigation eventually morphed into President Trump’s impeachment by the House and acquittal by the Senate.
Trump directed McGahn, his former legal adviser, not to comply with the subpoena, and the Department of Justice’s Office of Legal Counsel said the president and his inner circle were immune from congressional subpoenas.
The House sued in federal court to get the subpoena enforced and a district court judge sided against the president in November, ruling that the president and his close advisers have no such immunity from congressional subpoenas.
The latest decision, which can be appealed to the Supreme Court, affirms that Congress has the power to investigate the president and his branch of government and holds that the authority is especially important during impeachment proceedings.
“To level the grave accusation that a President may have committed ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the House must be appropriately informed,” Rogers, who was appointed to the appeals court by former President Clinton, wrote in the opinion. “And it cannot fully inform itself without the power to compel the testimony of those who possess relevant or necessary information.”
All seven of the judges in the majority were appointed by Democratic presidents, and both dissenters were appointed by Republicans. Two judges, Gregory Katsas and Neomi Rao, both of whom were appointed by Trump and worked in his White House, recused themselves from the case.
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