Appeals court says Don McGahn doesn't have to testify in major win for White House

Excon · Feb 28, 2020

Appeals court says Don McGahn doesn't have to testify in major win for White House

Washington (CNN)A federal appeals court Friday severely limited Congress' ability to enforce subpoenas it sends to the executive branch, in a decision dismissing the US House of Representatives' lawsuit to force former White House counsel Don McGahn to testify.
In a 2-1 decision, the US Court of Appeals for the District of Columbia Circuit ruled it didn't have the constitutional authority to resolve the standoff between the House Judiciary Committee and the White House.
"We cannot decide this case without declaring the actions of one or the other [branches of government] unconstitutional," appellate Judge Thomas Griffith wrote in the opinion, determining the federal judiciary should stay out of the fight between Congress and the President. "If federal courts were to swoop in to rescue Congress whenever its constitutional tools failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual 'overseer~~' of our elected officials. That is not the role of judges in our democracy, and that is why Article III compels us to dismiss this case."~~

~~Appeals court says Don McGahn doesn't have to testify in major win for White House | CNN~~

Court Rules Congress Cannot Sue to Force Executive Branch Officials to Testify
An appeals court dismissed a lawsuit brought by the House Judiciary Committee against President Trump’s former White House counsel, Donald F. McGahn II.

WASHINGTON — A federal appeals court ruled on Friday that Congress could not sue to enforce its subpoenas of executive branch officials, handing a major victory to President Trump and dealing a severe blow to the power of Congress to conduct oversight.

Court Rules Congress Cannot Sue to Force Executive Branch Officials to Testify \ New York Times

I wonder if they appeal?
This ruling, in essence, actually confirms that going to the courts is the proper procedure, not impeachment.

JasperL · Feb 28, 2020

Excon said:
I wonder if they appeal?
This ruling, in essence, actually confirms that going to the courts is the proper procedure, not impeachment.

How do you figure? The court ruled it has no jurisdiction, and so going to the courts will be, if the ruling is upheld, a waste of time. Impeachment is one of the few remedies left, and being unable to obtain documents or testimony from anyone in the Executive branch makes impeachment a lot harder.

PLizzy · Feb 28, 2020

Be prepared that the moment there is a Democrat in office and a Republican Congress litigating to get testimony, you'll see these same judges rule differently.

The courts are in the back pocket of the GOP. It's official.

justabubba · Feb 28, 2020

i agree with this non-casual observer:

In a 31-page dissent, Judge Judith W. Rogers warned that the court had fatally compromised Congress’s ability to check presidential power.

The Constitution’s framers intended to give Congress a fail-safe method to enforce accountability, Rogers wrote.

“The power to impeach and remove the President from office distinguished the President from a king. . . . The Founders well knew the destructive power of unchecked and uncheckable authority in the hands of a single person,” Rogers’s dissent said.

Rogers acknowledged the unique precedent the Trump administration has set in refusing to cooperate with the congressional investigation and said her colleagues’ opinion encourages “Presidential stonewalling.”

Rogers, a Democratic presidential appointee, wrote that “the Supreme Court and this court have long recognized that the ability to acquire information is indispensable to Congress’s performance of its constitutional roles” and that “the power of inquiry, including the power to issue a subpoena and thereby compel a witness to appear before the House, is critically important to the efficacy of the impeachment power.”

https://www.washingtonpost.com/loca...846412-3c5a-11ea-baca-eb7ace0a3455_story.html

this 2-1 decision needs to be appealed en banc

PLizzy · Feb 28, 2020

justabubba said:
i agree with this non-casual observer:

https://www.washingtonpost.com/loca...846412-3c5a-11ea-baca-eb7ace0a3455_story.html

this 2-1 decision needs to be appealed en banc

Agreed.

This needs to go all the way to the SCOTUS. If subpoenas from Congress are now just worthless paper, then lets get a controlling precedent for both sides.

Mycroft · Feb 28, 2020

If the Dem House pukes had used the proper procedure they would be in the position of having the court spank their ass.

Sorry, but they brought it on themselves.

Captain Adverse · Feb 28, 2020

justabubba said:
i agree with this non-casual observer:

this 2-1 decision needs to be appealed en banc

MovingPictures said:
Agreed.

This needs to go all the way to the SCOTUS. If subpoenas from Congress are now just worthless paper, then lets get a controlling precedent for both sides.

Fine. :shrug:

But I agree with the decision, and if the DC Circuit votes en banc against this decision, I hope the SCOTUS will vote in favor of it.

Why?

Congress already has oversight authority on any Agency it creates via Act of Congress.

There is nothing in the Constitution about oversight of the Chief Executive, or those who work directly for him.

In fact, the idea is "separation" of powers, each branch having it's own area of authority.

The power to impeach does not create any oversight authority. It only give Congress the power to Impeach and remove a President from office for "high crimes and misdemeanors."

Congress can subpoena members of the various agencies as authorized by it's oversight authority.

But IMO when it comes to White House Staff? Executive Privilege appends, and the DC Appeals court made the correct ruling.

So if they want to charge him and investigate impeachment proceedings? They want to demand witnesses?

Then issue subpoenas and let the President appeal them to SCOTUS to see if Executive Privilege applies to each one.

justabubba · Feb 28, 2020

Mycroft said:
If the Dem House pukes had used the proper procedure they would be in the position of having the court spank their ass.

Sorry, but they brought it on themselves.

what you are saying to us in that the democrats are masochists who want to get spanked?!

JasperL · Feb 28, 2020

Mycroft said:
If the Dem House pukes had used the proper procedure they would be in the position of having the court spank their ass.

Sorry, but they brought it on themselves.

What proper procedure are you talking about?

JasperL · Feb 28, 2020

Captain Adverse said:
Fine. :shrug:

But I agree with the decision, and if the DC Circuit votes en banc against this decision, I hope the SCOTUS will vote in favor of it.

Why?

Congress already has oversight authority on any Agency it creates via Act of Congress.

There is nothing in the Constitution about oversight of the Chief Executive, or those who work directly for him.

In fact, the idea is "separation" of powers, each branch having it's own area of authority.

The power to impeach does not create any oversight authority. It only give Congress the power to Impeach and remove a President from office for "high crimes and misdemeanors."

Congress can subpoena members of the various agencies as authorized by it's oversight authority.

But IMO when it comes to White House Staff? Executive Privilege appends, and the DC Appeals court made the correct ruling.

So if they want to charge him and investigate impeachment proceedings? They want to demand witnesses?

Then issue subpoenas and let the President appeal them to SCOTUS to see if Executive Privilege applies to each one.

The court just held that if they issue a subpoena, and POTUS says no, that's the end of that. The court ruled it has no jurisdiction to resolve any question of executive privilege. There's no method to compel compliance with a Congressional subpoena

The remedies are withholding funds, government shut downs, stalling legislation, appointments etc. and including impeachment, but what the court said is POTUS can just tell them to go to hell, and forbid any testimony, forbid any document request.

I only briefly read the decision, but just because Congress has "oversight authority" over an agency doesn't appear to compel that agency to produce documents or testimony if POTUS says NO! The decision brought up but pointedly failed to address what the outcome would be if Congress passed a law authorizing a lawsuit for some set of records, and POTUS said NO!

Bullseye · Feb 28, 2020

Excon said:
Appeals court says Don McGahn doesn't have to testify in major win for White House

Washington (CNN)A federal appeals court Friday severely limited Congress' ability to enforce subpoenas it sends to the executive branch, in a decision dismissing the US House of Representatives' lawsuit to force former White House counsel Don McGahn to testify.
In a 2-1 decision, the US Court of Appeals for the District of Columbia Circuit ruled it didn't have the constitutional authority to resolve the standoff between the House Judiciary Committee and the White House.
"We cannot decide this case without declaring the actions of one or the other [branches of government] unconstitutional," appellate Judge Thomas Griffith wrote in the opinion, determining the federal judiciary should stay out of the fight between Congress and the President. "If federal courts were to swoop in to rescue Congress whenever its constitutional tools failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual 'overseer~~' of our elected officials. That is not the role of judges in our democracy, and that is why Article III compels us to dismiss this case."~~

~~Appeals court says Don McGahn doesn't have to testify in major win for White House | CNN~~

Court Rules Congress Cannot Sue to Force Executive Branch Officials to Testify
An appeals court dismissed a lawsuit brought by the House Judiciary Committee against President Trump’s former White House counsel, Donald F. McGahn II.

WASHINGTON — A federal appeals court ruled on Friday that Congress could not sue to enforce its subpoenas of executive branch officials, handing a major victory to President Trump and dealing a severe blow to the power of Congress to conduct oversight.

Court Rules Congress Cannot Sue to Force Executive Branch Officials to Testify \ New York Times

I wonder if they appeal?

This ruling, in essence, actually confirms that going to the courts is the proper procedure, not impeachment.[/QUOTE] It's and interesting decision. It seems a bit broad. Congress does have SOME oversight responsibilities over the executive under which I would think subpoena authority would apply.

Barnacle · Feb 28, 2020

Does that decision mean the impeachment point "Obstruction of Congress" has just become null and void?!?

JasperL · Feb 28, 2020

Bullseye said:
It's and interesting decision. It seems a bit broad. Congress does have SOME oversight responsibilities over the executive under which I would think subpoena authority would apply.

It doesn't have any authority under this ruling. Subpoenas are per the decision worthless, with no more legal authority than, "Mother may I" requests.

JasperL · Feb 28, 2020

Barnacle said:
Does that decision mean the impeachment point "Obstruction of Congress" has just become null and void?!?

No, it means that impeachment for obstruction is one of the very few remedies remaining to Congress. The decision references impeachment as one of the alternatives for Congress since the courts will offer no relief.

Barnacle · Feb 28, 2020

JasperL said:
No, it means that impeachment for obstruction is one of the very few remedies remaining to Congress. The decision references impeachment as one of the alternatives for Congress since the courts will offer no relief.

Jonathan Turley
@JonathanTurley

Rather than wait for courts to review immunity and privilege arguments, the House impeached Trump for seeking judicial review. Now the court says that he was right in raising his constitutional objections. Article 2 now looks like a case of prosecutorial excess, if not abuse.

4:26 PM · Feb 28, 2020·Twitter Web Client

JasperL · Feb 28, 2020

Barnacle said:
Jonathan Turley
@JonathanTurley

Rather than wait for courts to review immunity and privilege arguments, the House impeached Trump for seeking judicial review. Now the court says that he was right in raising his constitutional objections. Article 2 now looks like a case of prosecutorial excess, if not abuse.

4:26 PM · Feb 28, 2020·Twitter Web Client

I don't really give a damn what Turley says. He's full of **** on this like he has been so often lately.

Maybe he'll explain at some point if the Congress cannot compel testimony or documents, why isn't the threat of impeachment a valid constitutional option to force compliance, and if the WH refuses, then actual impeachment. The court told us that impeachment of the president or recalcitrant WH officials is absolutely an appropriate remedy, one of Congress's remaining tools to force its will, so Turley disagrees with the decision he's citing here.

The guy has just lost all credibility. He's nothing but a right wing troll.

Barnacle · Feb 28, 2020

justabubba said:
i agree with this non-casual observer:

https://www.washingtonpost.com/loca...846412-3c5a-11ea-baca-eb7ace0a3455_story.html

this 2-1 decision needs to be appealed en banc

Chad Pergram
@ChadPergram

Pelosi on McGahn ruling: The House will now pursue an en banc rehearing of this decision. We will continue to honor our responsibility to exercise our constitutional authority to conduct oversight..including by issuing our lawful and legitimate subpoenas

9:27 PM · Feb 28, 2020·Twitter for iPhone

:lol:

Bullseye · Feb 28, 2020

JasperL said:
It doesn't have any authority under this ruling. Subpoenas are per the decision worthless, with no more legal authority than, "Mother may I" requests.

That's why said it seems a bit broad.

Barnacle · Feb 28, 2020

JasperL said:
I don't really give a damn what Turley says. He's full of **** on this like he has been so often lately.
Maybe he'll explain at some point if the Congress cannot compel testimony or documents, why isn't the threat of impeachment a valid constitutional option to force compliance, and if the WH refuses, then actual impeachment. The court told us that impeachment of the president or recalcitrant WH officials is absolutely an appropriate remedy, one of Congress's remaining tools to force its will, so Turley disagrees with the decision he's citing here.
The guy has just lost all credibility. He's nothing but a right wing troll.

Constitutional objections ...

JasperL · Feb 28, 2020

Barnacle said:
Jonathan Turley
@JonathanTurley

Rather than wait for courts to review immunity and privilege arguments, the House impeached Trump for seeking judicial review. Now the court says that he was right in raising his constitutional objections. Article 2 now looks like a case of prosecutorial excess, if not abuse.

4:26 PM · Feb 28, 2020·Twitter Web Client

I'll quote from the opinion: D.C. Circuit Dismisses McGahn Subpoena Case - Lawfare

Instead, the Constitution gives Congress a series of
political tools to bring the Executive Branch to heel. See
Goldwater v. Carter, 444 U.S. 996, 1004 (1979) (opinion of
Rehnquist, J.) (noting that the “coequal branches of our
Government” have “resources available to protect and assert
[their] interests”). Congress (or one of its chambers) may hold
officers in contempt, withhold appropriations, refuse to
confirm the President’s nominees, harness public opinion,
delay or derail the President’s legislative agenda, or impeach
recalcitrant officers. See Chafetz, supra, at 1152-53; see also
H.R. Res. 755, 116th Cong., at 6 (2019) (impeaching President
Trump for “obstruction of Congress”).

Take the Appropriations Clause. The Executive Branch
cannot spend a dime without Congress’s consent, U.S. CONST.
art. 1, § 9, cl. 7, and that’s a powerful incentive to follow
Congress’s instructions. Don’t take our word for it; take James
Madison’s: “This power over the purse, may in fact be regarded
as the most compleat and effectual weapon with which any
constitution can arm the immediate representatives of the
people, for obtaining a redress of every grievance, and for
carrying into effect every just and salutary measure.” THE
FEDERALIST NO. 58, at 394 (J. Cooke ed. 1961) (emphasis
added). The dissent likewise discounts the Senate’s
appointment power, the impeachment power, and the informal
power to “publicly embarrass executive branch officials.”
Devins, supra, at 134.

Essentially Turley's arguing that the WH can have its cake and eat it, too. It can stonewall Congress and Congress cannot enforce its subpoena, AND it's constitutionally illegitimate to impeach the President for stonewalling. So according to Turley, we have the equivalent of a king unaccountable in any way to Congress when it comes to these questions. A simple "HELL NO!" and, per legal hack Turley, Congress must merely shrug and move on.

Of course the majority opinion here flatly disagrees with Turley's "analysis" because he's an idiot.

Anthony60 · Feb 28, 2020

Excon said:
Appeals court says Don McGahn doesn't have to testify in major win for White House

Washington (CNN)A federal appeals court Friday severely limited Congress' ability to enforce subpoenas it sends to the executive branch, in a decision dismissing the US House of Representatives' lawsuit to force former White House counsel Don McGahn to testify.
In a 2-1 decision, the US Court of Appeals for the District of Columbia Circuit ruled it didn't have the constitutional authority to resolve the standoff between the House Judiciary Committee and the White House.
"We cannot decide this case without declaring the actions of one or the other [branches of government] unconstitutional," appellate Judge Thomas Griffith wrote in the opinion, determining the federal judiciary should stay out of the fight between Congress and the President. "If federal courts were to swoop in to rescue Congress whenever its constitutional tools failed, it would not just supplement the political process; it would replace that process with one in which unelected judges become the perpetual 'overseer~~' of our elected officials. That is not the role of judges in our democracy, and that is why Article III compels us to dismiss this case."~~

~~Appeals court says Don McGahn doesn't have to testify in major win for White House | CNN~~

Court Rules Congress Cannot Sue to Force Executive Branch Officials to Testify
An appeals court dismissed a lawsuit brought by the House Judiciary Committee against President Trump’s former White House counsel, Donald F. McGahn II.

WASHINGTON — A federal appeals court ruled on Friday that Congress could not sue to enforce its subpoenas of executive branch officials, handing a major victory to President Trump and dealing a severe blow to the power of Congress to conduct oversight.

Court Rules Congress Cannot Sue to Force Executive Branch Officials to Testify \ New York Times

I wonder if they appeal?
This ruling, in essence, actually confirms that going to the courts is the proper procedure, not impeachment.

~~Well, looky here. Congress just couldn't wait for this decision. Because it confirms that their impeachment was a complete farce.~~

JasperL · Feb 28, 2020

Barnacle said:
Constitutional objections ...

I don't know what you mean. You'll have to explain.

JasperL · Feb 28, 2020

Anthony60 said:
Well, looky here. Congress just couldn't wait for this decision. Because it confirms that their impeachment was a complete farce.

No, it doesn't actually do anything of the sort. The court explicitly said in the opinion, more than once, that a perfectly legitimate remedy for the WH refusal to comply with Congressional subpoenas is.....impeachment, either of POTUS or recalcitrant WH officials.

I've cited two instances above. Here's a third:

A congressional inquiry may begin and end with a polite request
for information. Or a chamber of Congress may escalate by,
say, issuing a formal subpoena, threatening to withhold
appropriations, or passing articles of impeachment.

JasperL · Feb 28, 2020

Barnacle said:
Jonathan Turley
@JonathanTurley

Rather than wait for courts to review immunity and privilege arguments, the House impeached Trump for seeking judicial review. Now the court says that he was right in raising his constitutional objections. Article 2 now looks like a case of prosecutorial excess, if not abuse.

4:26 PM · Feb 28, 2020·Twitter Web Client

FWIW, a later comment is a lot closer to the mark. Looks like he realized within about 30 minutes how badly wrong he was on his first 'take':

View attachment 67274696

JasperL · Feb 28, 2020

Bullseye said:
That's why said it seems a bit broad.

I agree, but this is exactly the decision Barr and his ilk wanted from the courts. He's raising a glass of champagne, figuratively or literally, to this decision. I'm convinced that's a big reason he agreed to the job, as he knew he found a President who would push the case to the limits, a flat refusal to cooperate with Congress, at all, which would force a court challenge, and of course that's what Trump gladly did. Congrats to him, I guess...

Appeals court says Don McGahn doesn't have to testify in major win for White House

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Appeals court says Don McGahn doesn't have to testify in major win for White House

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