Friday, February 28, 2020
The D.C. Circuit dismissed the House Judiciary Committee's lawsuit seeking to compel the testimony of former White House Counsel Don McGahn. The court held that the Committee failed to assert a judicially cognizable injury, and that the case was therefore not justiciable under Article III.
The ruling deals a sharp blow to Congress's authority to compel testimony of, and to obtain information from, Executive Branch officials. It means that congressional lawsuits against Executive Branch officials to compel testimony are nonjusticiable, and that Congress will have to use its own powers (appropriations, appointments, contempt, impeachment) to obtain that testimony and information. As we've seen, however, those tools often don't do the job.
In short, the ruling invites presidential noncooperation with congressional oversight and investigations and, as a practical matter, with a noncooperative president, could all but mark the end of effective congressional oversight of the administration. Having said that, this'll surely be appealed.
The court, in an opinion penned by Judge Griffith, ruled that the Committee lacked a judicially cognizable injury, and therefore lacked standing under Article III. It said that the courts have no business refereeing a pure dispute between Congress and the Executive Branch. It distinguished cases where the courts have ruled in inter-branch disputes, saying that those cases always involved a direct, cognizable harm to an individual, not a branch of government.
In this case, the Committee's dispute with the Executive Branch is unfit for judicial resolution because it has no bearing on the "rights of individuals" or some entity beyond the federal government. The Committee is not a private entity seeking vindication of its "constitutional rights and liberties . . . against oppressive or discriminatory government action." Nor does the Committee seek the "production or nonproduction of specified evidence . . . in a pending criminal case"--the "kind of controversy" threatening individual liberty that "courts traditionally resolve."
Instead, the Committee claims that the Executive Branch's assertion of a constitutional privilege is "obstructing the Committee's investigation." That obstruction may seriously and even unlawfully hinder the Committee's efforts to probe presidential wrongdoing, but it is not a "judicially cognizable" injury.
Judge Henderson concurred, but added that McGahn's arguments on both justiciability and the merits went too far:
First, McGahn urges us to foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute; I do not believe, however, Supreme Court precedent supports a holding of that scope. Second, McGahn's assertion of absolute testimonial immunity against compelled congressional process is, in my opinion, a step too far, again, under Supreme Court precedent.
Judge Rogers dissented:
The House comes to the court in light of the President's blanket and unprecedented order that no member of the Executive Branch shall comply with the subpoena duly issued by an authorized House Committee. Exercising jurisdiction over the Committee's case is not an instant of judicial encroachment on the prerogatives of another Branch, because subpoena enforcement is a traditional and commonplace function of the federal courts. The court removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House's ability to perform its constitutional duties.