Once behind Trump, Then in Shadows, Soon in Limelight
(Attorney Don McGahn Compel to Testify or Not)
Critical
story here from Politico (April 28): Battle between DOJ and the House of
Representatives on “Subpoena Power.”
Barring
Congress from enforcing its subpoenas in court could push lawmakers toward
arresting senior Trump administration officials or pursuing even more extreme
measures (several Appeals Court judges
suggest).
It was the
second time in recent months that the DC Circuit Court of
Appeals has openly mulled the bizarre and unnerving prospect of armed
conflict between the House sergeant-at-arms and FBI agents if other, more
peaceful options for the House to obtain information from the executive branch
are closed off.
The discussion occurred as lawyers for the House and DOJ sparred over efforts by Democrats to force former White House
counsel Don McGahn (ref: Law
Fare article here) to testify about his knowledge of alleged wrongdoing
by Trump.
Most of the nine judges (of the 17 total) who joined
in the rare en banc (def: full court session) seemed receptive to the House’s
concerns, with one judge musing the
Trump administration was so intent on sidelining the courts that the public
would be left only with “revolution
as an alternative.”
The DOJ lawyer
representing the Trump administration offered a sweeping argument that Congress
has no authority to take legal action to enforce its subpoenas because that
power lies solely with the president.
Rather,
lawmakers must rely on a set of political tools — from choking off funding to
blocking presidential nominations to impeachment — to bend a stonewalling
president to the Congressional will and that lawyer, DOJ attorney Hashim Mooppan,
said: “Issuing subpoenas — that's a prerogative of
Congress. Enforcing subpoenas and enforcing laws — that’s a prerogative of the
president.”
My note: But, what if the subpoena is for the
President or anyone close around him like McGahn in this case, were the subject
of the subpoena? DOJ’s argument implies and that means the President (any
president) could quash the subpoena for himself, thus in essence stopping any
inquiry into his nastiness to be investigated.
That hardly seems right, just,
or perhaps even legal – my view and initial reaction to the DOJ lawyer’s argument.
House top lawyer, Doug Letter, said DOJ’s position would upend decades of practice in congressional
investigations and effectively leave lawmakers powerless to stand up to an
obstructive administration.
Specifically
Letter said: “If the court goes
with the Justice Department arguments … congressional oversight as it has been
known for this country for years is going to change and be very, very different.
House
Democrats are hopeful for a victory from the full appeals court, which is heavy
with appointees of Obama and generally seen as more favorable to the House’s
arguments than the three-judge panel which ruled against them 2-1 in February.
Most of the judges taking part in these arguments
signaled early and often that they viewed DOJ’s stance with skepticism,
repeatedly referencing the extreme notion of the House having to resort to
arresting McGahn to get its questions answered or even a judicial resolution of
Trump’s claims of executive privilege.
Judge Nina Pillard said: “The
DOJ stance would leave the House with little but huge, blunt, disproportionate
nuclear options to try to procure information.”
This high-stakes
battle could decide one of the most urgent political issues of Trump’s
presidency — whether the White House can block Congress from using the legal
system to force crucial witnesses to testify about alleged obstruction of
justice by the president himself.
And, it also
has the potential to reshape the relationship between presidents and Congress
for generations to come.
Attorney Mooppan
pleaded with the judges to steer clear of both fights. He accused the House of
making a “radical break with history by
seeking to enmesh the judiciary in the inter-branch battles.”
He added: “Disputes
between the political branches about their institutional prerogatives have
occurred since the founding, but lawsuits between them are a novel and
unsanctioned tactic.”
Judge Merrick Garland (whom
Sen. McConnell kept from even getting a Senate hearing for USSC appointment
under Obama) said and then asked Mooppan: “Foreclosing all suits by
Congress could allow a rogue president to spend wildly, like by paying for
health insurance for every American even if Congress never authorized such a
program. Does Congress have standing to challenge that?”
Mooppan simply said: “No.”
Background on earlier ruling: In February, a three-judge DC
Circuit panel swept aside Judge Jackson’s ruling and determined
that the courts have no role settling disputes between the White House and
Congress — a sweeping decision that would reshape Congress’ ability to wrest
information out of reluctant administrations.
The victory
for the president was short-lived, however, as just two weeks later the DC Circuit announced announced that is was accepting the House’s request that a rare
“en banc” court convene to re-hear the case.
Strikingly, during the latest arguments, no judge offered vigorous public support for the administration’s
stand.
Source
articles are here
and here
and here
(listed in order of published date: April 27, 28, and 29).
My 2 cents: Wow – showdown time at the USSC for
sure.
My view is that I think the high court will support
Congress after all they have constitutional Article 1 powers that are more than
merely executive privilege (that Trump claims which is his absolute power) but to hide his crimes, too (if any - hard to think so)?
I don’t think any American would buy into that from
any president (Democrat or Republican) – but we shall see.
This is a very
critically important ruling, and as we know and have seen from the past the
Supreme Court is frequently full of surprises – thus, this case can go either
way, so hang on tight.
Thanks for stopping by.
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