The full DC Circuit Comrt of Appeals has decided to consider two major separation-of-powers cases involving standoffs between the Trump administration and House Democrats.
The court said Friday it will rehear the House’s appeal for former White House counsel Don McGahn’s testimony, erasing the court’s previous decision that judges can’t resolve standoffs over subpoenas between the executive branch and Congress.
The order on Friday revives a major case that has allowed the White House to so far block congressional testimony from its former and current officials, a sticking point during President Donald Trump’s impeachment proceedings. A panel of three judges had previously ruled 2-1 that the courts did not have the ability to decide in the case.
The appeals court also said Friday that the full court will consider legal questions related to a fight between Congress and the administration over border wall funding.
In both cases, the court will weigh whether the judiciary can get involved in fights between the other branches of government, according to the court’s order on Friday.
The standoffs in court between Congress and the White House have been a nearly unprecedented feature of the Trump era. Throughout history, presidential administrations and Congress have negotiated for information, especially resolving standoffs before federal appeals courts would choose a side.
But the Trump administration has taken a far more combative approach – one pioneered by administrations only in the last few decades – and the Democratic-led House has responded with several lawsuits seeking information from the executive branch and for enforcement.
Trial-level judges have largely sided with the House, with one notably writing that “presidents are not kings” and cannot broadly gag former staffers like McGahn when they are subpoenaed.
In the border wall dispute, a Trump-appointed judge agreed with the administration, ruling that he shouldn’t weigh in and instead saying Congress should use its own powers, like overriding vetoes.
When the appeals court in the McGahn case sided with the Justice Department, Judge Thomas Griffith pointed to other congressional powers of holding the White House accountable, such as impeaching officials, swaying public opinion, withholding nominations or even potentially arresting people who violate subpoenas on its own – an idea all sides admitted was archaic and unlikely to be used.
“We cannot decide this case without declaring the actions of one or the other [branches of government] unconstitutional,” Griffith wrote. “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[s]’ of our elected officials.”
In both cases, the Trump administration has maintained that the courts have no ability to step into the disputes with Congress.
The House had sued the administration in both cases.
In the border wall case, the House said the Trump administration went outside its powers when it transferred congressionally appropriated funds from the Department of Defense to build the wall.
In the subpoena case, the House had tried to force McGahn to testify about the President’s actions during the Russia investigation. But the White House claimed “absolute immunity,” effectively shutting down a major aspect of the House Judiciary Committee’s investigation into whether Trump had obstructed justice by directing McGahn to fire special counsel Robert Mueller, among other things. The House has told the court that it needs McGahn’s testimony to consider whether to impeach Trump again for obstructing Mueller. Trump has said McGahn lied in his interviews to Mueller’s team.
The House had argued that the circuit court’s decision late in February to stay out of the dispute would “upset” the balance of powers under the Constitution, and could have lasting negative effects on Congress’ ability to investigate and legislate and on several other court actions. It would also embolden the President to defy more requests from Congress, the House argued.
Supporting the House earlier this week, almost 100 former members of Congress from both parties and notable executive branch leaders argued that the McGahn decision from February would encourage and normalize presidential stonewalling.
A majority of nine judges on the DC Circuit voted to rehear the McGahn case and to put the border wall case before the full court. They’ll hear arguments on both cases at the end of April.
Two judges appointed by Trump – Greg Katsas and Neomi Rao – did not weigh in on the vote to rehear the McGahn case and may be recused when the case is heard by the full circuit court. Even with them, the 11-judge court has more appointees from Democratic administrations than Republican administrations.
A three-judge panel heard arguments in the border wall case in February but hadn’t yet decided it.
This story has been updated with background and details.