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Federal appeals court declines to enforce subpoena of former White House counsel Don McGahn
@ WikiMedia (Don McGahn)
Federal appeals court declines to enforce subpoena of former White House counsel Don McGahn

The US Court of Appeals for the District of Columbia on Monday dismissed a lawsuit by the House of Representatives Judiciary Committee, which sought to enforce a subpoena issued to former White House counsel Don McGahn. The appeals court found that the committee lacked a cause of action.

McGahn left his position as White House counsel in 2018. In April 2019 he was subpoenaed by the House Judiciary Committee to testify on matters relating to the Mueller report. The Department of Justice (DOJ) advised McGahn that he did not have to testify, and the House Judiciary Committee filed suit in August 2019 after negotiations with McGahn failed. A federal judge ruled in November that McGahn had to comply with the subpoena.

On appeal, a three-judge panel from the US Court of Appeals for the District of Columbia found that Congress never passed a law authorizing the House Judiciary Committee’s action.

The court said that Congress declined to authorize lawsuits like the committee’s lawsuit because Congress granted an express cause of action to the Senate but not to the House of Representatives. The committee suggested that the court could exercise its “traditional equitable powers” to grant relief. The court stated that there was nothing “traditional” about the claim because no chamber of Congress had brought suit for injunctive relief against the executive branch before 1970.

The court stated that Congress precluded them from granting the requested relief. The Declaratory Judgment Act also did not allow the Committee to bring suit because the act is only procedural and does not itself provide a cause of action.

The court dismissed the lawsuit because it concluded that the Committee lacked a cause of action to enforce its subpoena. However, the court noted that Congress was not precluded from ever enforcing a subpoena in federal court. Congress just must first enact a statute that authorizes the suit.