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

[JasperL]

This was no win for the executive branch, in general, but a vindication of the House impeachment.

The court said that Congress could impeach the president for obstruction of justice, which is what it did. Thus, it was the Republican senate in January, not yesterday's court decision, that tipped the balance of power to the executive branch.

I agree it was vindication, but let's say Trump is reelected. We all know his response to the next batch of Congressional requests from Democrats - uh...NO! And as long as the Senate is roughly even, the House can impeach him once a month and he won't care, at all.

I guess Democrats can shut down government, or parts of it, but Trump will just declare an "emergency" and spend the money. And my guess is he's more than happy to inflict a bunch of pain on federal workers to make his point.

Sure, if the requests are from a GOP controlled chamber, the equation changes a bit, but I just don't see this batch of gutless cowards in the Trump GOP pushing Trump on anything. They're completely cowed by Trump.

 

[Paradoxical]

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.

Wow! What a slap down of Schiff, Nadler and Pelosi! Holy Moley

 

[jamesbyoung]

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.

It will be appealed.

 

[JasperL]

Wow! What a slap down of Schiff, Nadler and Pelosi! Holy Moley

LOL, that's funny. Was just talking about that bogus talking point.

Patterico's Pontifications >> Court of Appeal Vindicates the House’s “Obstruction of Congress” Article of Impeachment, as Trumpists Run False Victory Laps

 

[Helix]

what is it that needs to be done legislatively?

what you have proposed may require a Constitutional amendment to revise the article 2 powers

No more one person wars or trade wars, and no more above the law presidents. And the democratic president had better well sign it.

End gerrymandering federally.

Take federal control of elections until states get their heads out of their asses.

This could be its own thread.

 

[Bullseye]

I agree that should be the result, but reading the case gave me no comfort at all that's how this court would rule. Essentially it said that if there is a dispute between Congress and the WH/Executive branch, they need to work it out for themselves, the courts have no role at all. I'm no constitutional lawyer, but there was no - except in these cases we CAN resolve disputes anywhere.

It didn't even really talk about the merits of this case except to note what they were. Who McGahn was, his role, the issues that might justify a claim of privilege - none of that formed the basis of the decision. The court just said - work it out amongst yourselves - we're out!

Here's a link to the decision. Anyone can read it and tell me what I missed.

D.C. Circuit Dismisses McGahn Subpoena Case - Lawfare

Congratulations on reading it; from what I have seen elsewhere it seems like the court is saying because it's at a lower level it doesn't have authority to decide on a dispute between two branches of the government.

 

[Excon]

First quote out of sequence.

I'll do so:


So they explicitly cited the impeachment inquiry we just got through as an example of a legitimate "tool" to use in cases of refusal to comply with subpoenas.

You still are not understanding. Choice of wording (bring ... to heel) notwithstanding, all they are saying is that these are examples of the tools you have at your disposal, not that they should use impeachment or that that article of impeachment was proper and would bring results.
Do you really not understand that?

So you're arguing that they should issue a THREAT to impeach, but it's an empty one because it would be "bogus" to back that threat up with, you know, "full" impeachment. How's that work? And where did the court make that distinction?

The political tools as exemplified by the court are clearly there for negotiation. You give us this, and we will give you that (quid pro quo). If you do not do this, we will do that (threat).

The threat of impeachment is the tool that can be used in an attempt to gain compliance with their request. That threat could be in relation to any impeachable offense but not really like the one they recently engaged in, as that was bs from the very beginning. They were not entitled to the information and an impeachment based on such a claim is bogus bs. And could not bear compliance in relation to their request. That simply was not an end result in this case which has been exemplified by the results.

Bottom line is I've quoted repeatedly from the opinion. I'm not interested in your ignorant analysis not backed up by what the court actually said. If you want to claim the court said or implied the bolded above, quote them.

:lamo No, The bottom line is your lack of understanding of what the court opined on has already been exposed, so further discussion is only a fruitless endeavor unless you miraculously start understanding what you are being told.

They did point out some circumstances where they would have jurisdiction,

Exactly. Which is why this is limited to the current type of circumstance. It does not apply in those other circumstances.
It is limited.

 

[Excon]

FWIW, here's some more of what the court actually said. Hint - it wasn't about threatening to impeach. Read for yourself:



Huh, just like what the House did in 2019!

Search for yourself. Nowhere in the opinion did it mention "threats" or "threatening to impeach" or similar as one of those tools.

Oy vey. :doh
So you really do not understand that a threat of impeachment is part and parcel of those tools?
Really?

 

[j brown's body]

First quote out of sequence. You still are not understanding. Choice of wording (bring ... to heel) notwithstanding, all they are saying is that these are examples of the tools you have at your disposal, not that they should use impeachment or that that article of impeachment was proper and would bring results.
Do you really not understand that?



The political tools as exemplified by the court are clearly there for negotiation. You give us this, and we will give you that (quid pro quo). If you do not do this, we will do that (threat).

The threat of impeachment is the tool that can be used in an attempt to gain compliance with their request. That threat could be in relation to any impeachable offense but not really like the one they recently engaged in, as that was bs from the very beginning. They were not entitled to the information and an impeachment based on such a claim is bogus bs. And could not bear compliance in relation to their request. That simply was not an end result in this case which has been exemplified by the results.



:lamo No, The bottom line is your lack of understanding of what the court opined on has already been exposed, so further discussion is only a fruitless endeavor unless you miraculously start understanding what you are being told.




Exactly. Which is why this is limited to the current type of circumstance. It does not apply in those other circumstances.
It is limited.

So the threat of impeachment is only legitimate if you agree with the charges?

 

[danielpalos]

So the threat of impeachment is only legitimate if you agree with the charges?

Would the Senate be able to vote no on articles of impeachment for obstructing the authority of the House in their oversight investigaion?

 

[JasperL]

Congratulations on reading it; from what I have seen elsewhere it seems like the court is saying because it's at a lower level it doesn't have authority to decide on a dispute between two branches of the government.

Yes, one of the opinions said that such a decision would have to come from the Supreme Court. I'm not sure if it was the majority or the concurring opinion, but you're right. eace

One weird thing pointed out by a lawyer online was the concurring didn't agree with many of McGahn's sweeping claims of absolute immunity, etc. which is fine, but if Congress cannot enforce a subpoena, with or without claims of privilege or immunity, it's a moot point. So it's not clear what the court is really saying, given a majority does NOT agree that McGahn's sweeping claims have merit. If nothing else the SC will have to address that question, perhaps...

 

[ludin]

Yes, one of the opinions said that such a decision would have to come from the Supreme Court. I'm not sure if it was the majority or the concurring opinion, but you're right. eace

One weird thing pointed out by a lawyer online was the concurring didn't agree with many of McGahn's sweeping claims of absolute immunity, etc. which is fine, but if Congress cannot enforce a subpoena, with or without claims of privilege or immunity, it's a moot point. So it's not clear what the court is really saying, given a majority does NOT agree that McGahn's sweeping claims have merit. If nothing else the SC will have to address that question, perhaps...

no one claims they have immunity what they do have is executive privilege. to beat that congress needs a scotus ruling probably.

 

[Anthony60]

What can I say but this opinion said differently MANY times. If you want to claim the conservative majority got it wrong here, OK, but it's not all that compelling, since they're making the law, decide what the law IS, and you're not.

And the reason the criminal courts prosecute obstruction of justice is if a defendant and those around him simply refuse to provide relevant information, they burn it, shred it, erase it, and refuse to testify, you cannot determine guilt on that offense because the information to make an informed decision was destroyed or denied the prosecutors. So to prevent EVERY defendant from simply flat refusing to respond to lawful subpoenas, the courts make refusing that a CRIME.

That's apples and oranges. No criminal court is involved. There's no CRIME involved with separation of powers. An accused can't claim Executive Privilege or separation of powers. Stop trying to apply criminal law to this. The powers of the President and Congress are not governed by criminal law. The Constitution applies.

The same theory applies to impeachment, as it must, because the defendant refusing to cooperate with the inquiry is intended to withhold from Congress the information it needs to determine whether there was a violation of a high crime, etc. Given that, Congress must of course be able to impeach for obstruction.

No, it doesn't apply. The President is a separate, equal branch of government. No comparison whatsoever to a citizen being accused of a crime. There is no Constitutional issue when a court orders a subpoena to a citizen. I can't believe you are making such an an argument. You are just plain ignoring who the parties involved are.

 

[j brown's body]

no one claims they have immunity what they do have is executive privilege. to beat that congress needs a scotus ruling probably.

I believe the Supreme Court has ruled: United States v Nixon

The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes.

{{meta.fullTitle}}

 

[danielpalos]

no one claims they have immunity what they do have is executive privilege. to beat that congress needs a scotus ruling probably.

There is no executive privilege from political oversight or impeachment.

 

[Anthony60]

OK, that's fine, but I'll go with what the judges say, actual experts in the Constitution whose job is interpreting the document, and making binding decisions based on their interpretations. Hope you're not offended by that.

But, yes, the bottom line is if the court won't enforce subpoenas, then the House has only a few tools available to it. Impeachment is one of them. Obviously it won't be used when the information is insignificant, but in this case, Trump prohibited the WH from releasing ANY documents. He said in response to the House subpoenas - you'll get NOTHING from us, not a page, not a text, not an email, not a word of testimony. You'll get nothing!

It's unprecedented, and Congress correctly said that kind of response cannot stand, and impeached him in part over his refusal. That's how the court told us the House could force its will in these disputes.

As the House can decide that they are going to abuse their impeachment power, over something that the courts have now refused to give them, then the President can say that they did not follow proper procedures (full House votes, etc...) then he will not release anything. The House chose to continue with the illegitimate impeachment, and the President won. But, now they have established a new precedent to impeach the next Democrat President (God forbid) with any old thing that can be drummed up.

 

[JasperL]

First quote out of sequence. You still are not understanding. Choice of wording (bring ... to heel) notwithstanding, all they are saying is that these are examples of the tools you have at your disposal, not that they should use impeachment or that that article of impeachment was proper and would bring results.
Do you really not understand that?

The political tools as exemplified by the court are clearly there for negotiation. You give us this, and we will give you that (quid pro quo). If you do not do this, we will do that (threat).

The threat of impeachment is the tool that can be used in an attempt to gain compliance with their request. That threat could be in relation to any impeachable offense but not really like the one they recently engaged in, as that was bs from the very beginning. They were not entitled to the information and an impeachment based on such a claim is bogus bs. And could not bear compliance in relation to their request. That simply was not an end result in this case which has been exemplified by the results.

:lamo No, The bottom line is your lack of understanding of what the court opined on has already been exposed, so further discussion is only a fruitless endeavor unless you miraculously start understanding what you are being told.

Exactly. Which is why this is limited to the current type of circumstance. It does not apply in those other circumstances.
It is limited.

I don't see any actual claim made there, except you don't agree with the Democrats' decision to impeach Trump. You've cited nothing from the case, not a word, and offer what are you subjective opinions about what the House should have done in this case. OK. I don't care about that.

And I haven't claimed unlimited, so why are you beating that straw man? Weird!

Here's what I said on the subject that you weren't considerate enough to quote:

"I don't understand your question. They did point out some circumstances where they would have jurisdiction, none of them relevant to the issues being disputed in recent months, or that are the subject of ongoing lawsuits. U.S. v. Nixon established that the court could wade into matters involving a criminal indictment, which isn't an issue here, since Congress cannot indict. So what are you asking?"

 

[Anthony60]

i must have missed it in my reading. would you please provide the reference you rely upon to assert that impeachment was "... designed as a last resort, a very high bar. Not a leash that the House holds over the Executive branch in order for the President to be beholden to them. That is exactly why they made it such a rare and difficult remedy. Not for use when the House doesn't get what they want."

That's just common knowledge for anyone that has checked into what the founders thought and wrote about at the time. I suggest you read up on it.

 

[danielpalos]

As the House can decide that they are going to abuse their impeachment power, over something that the courts have now refused to give them, then the President can say that they did not follow proper procedures (full House votes, etc...) then he will not release anything. The House chose to continue with the illegitimate impeachment, and the President won. But, now they have established a new precedent to impeach the next Democrat President (God forbid) with any old thing that can be drummed up.

Where do you get your propaganda and rhetoric? The House is the authority responsible for oversight and impeachment. There is no other authority.

 

[JasperL]

No, it doesn't apply. The President is a separate, equal branch of government. No comparison whatsoever to a citizen being accused of a crime. There is no Constitutional issue when a court orders a subpoena to a citizen. I can't believe you are making such an an argument. You are just plain ignoring who the parties involved are.

This isn't about the court issuing a subpoena, but the House doing so while exercising a power granted to it by the Constitution. If they cannot enforce their subpoenas, and compel the disclosure of information and the appearance of witnesses, how can they fulfill their Constitutional duties?

 

[danielpalos]

This isn't about the court issuing a subpoena, but the House doing so while exercising a power granted to it by the Constitution. If they cannot enforce their subpoenas, and compel the disclosure of information and the appearance of witnesses, how can they fulfill their Constitutional duties?

The House should impeach for lack of compliance with any subpoena regarding oversight and impeachment.

 

[JasperL]

As the House can decide that they are going to abuse their impeachment power, over something that the courts have now refused to give them, then the President can say that they did not follow proper procedures (full House votes, etc...) then he will not release anything. The House chose to continue with the illegitimate impeachment, and the President won. But, now they have established a new precedent to impeach the next Democrat President (God forbid) with any old thing that can be drummed up.

The court didn't refuse anything. They didn't rule on the merits. The court simply said - we have no authority. You cannot turn to us for help. And the court explicitly said that IMPEACHMENT is one tool you can use to bring Trump "to heel" when he refused ALL requests for information.

And it's not any old thing to tell the House, to all those related inquiries - You will get NOTHING! It's never happened before. The reason these issues have been so rarely litigated is the parties come to a compromise. There is no compromise with NOTHING!

Besides, the threat that the GOP will impeach the next Democrat is a hollow one. Of course they will and this decision didn't change that in the slightest, nor did the House filing impeachment articles against Trump. And it will be a lot harder to impeach the next Democrat when a perfectly acceptable response to the House or Senate's demands for information is - go to hell. We'll not comply with any request, and none of our people will show up to testify.

 

[JasperL]

no one claims they have immunity what they do have is executive privilege. to beat that congress needs a scotus ruling probably.

From the ruling:

From the outset, the Executive Branch
has taken the position “that Mr. McGahn is absolutely immune
from compelled congressional testimony.”

I don't know if you are hair splitting or have another point, but when they claimed they are "absolutely immune from compelled testimony" - period - which is what they did, there's no need to get to specific claims of privilege. If he cannot be compelled to testify, period, then privilege is a moot point.

Again, from the dissenting opinion:

In other words, absolute immunity means that
McGahn need not honor the subpoena at all. But unlike an
assertion of privilege to specific questions, which encourages
the parties to use accommodation and other political tools,
McGahn’s absolutist stance has prevented their use and
prematurely involved the courts.

 

[Moderate Right]

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.

This is why the House rushed to impeachment and didn't want to wait for courts to decide.

 

[JasperL]

This is why the House rushed to impeachment and didn't want to wait for courts to decide.

Because the ruling vindicated their approach? I don't understand....

Patterico's Pontifications >> Court of Appeal Vindicates the House’s “Obstruction of Congress” Article of Impeachment, as Trumpists Run False Victory Laps