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US circuit court rules House Judiciary Committee can sue to enforce subpoenas
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US circuit court rules House Judiciary Committee can sue to enforce subpoenas

The US Court of Appeals for the DC Circuit ruled Friday that House committees can sue to enforce their subpoenas.

The ruling is the result of a lawsuit filed by the House Judiciary Committee against former White House counsel Donald McGahn. The Committee had subpoenaed McGahn’s testimony in April of 2019 as part of its inquiry into allegations that the Trump administration had interfered with special counsel Robert Mueller’s investigation. The administration had argued that senior staff were immune from such requests due to executive privilege, and McGahn had refused to testify. A three-judge panel of the DC Circuit had ruled against the Committee, finding that the court lacked jurisdiction to hear the case.

The House committee filed a petition for a rehearing en banc which was granted, and the full panel ruled 7-2 in favor of enforcing the subpoena. In its decision, the court found that “the ordinary and effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary.”

Two judges on the court, Gregory Katsas and Neomi Rao, both Trump appointees, had recused themselves from the case, both having worked for the administration before they became judges; Katsas served as deputy White House counsel under McGahn. Two other judges, Thomas Griffith and Karen Henderson, were the majority in the three judge panel that had originally ruled against the Judiciary Committee, and both judges authored dissents in Friday’s ruling. Henderson warned that the decision “enlarges the Judiciary’s power to intervene in battles that should be waged between the Legislature and the Executive and opens the door to future disputes between the political branches,” while Griffith warned that the decision risked placing the Judiciary in the middle of fights between the Executive and the Legislative branches and degrade the impartiality of the courts.

The decision will not lead to McGahn’s testimony before the Committee any time soon, however; the court remanded other matters, including the issue of whether the court has subject matter jurisdiction, back to the three judge panel for adjudication.