Patterico's Pontifications

8/7/2020

En Banc D.C. Circuit Rules House Can Seek to Enforce Subpoena Against McGahn in Court

Filed under: General — Patterico @ 8:29 am



Today the en banc D.C. Circuit overruled a panel decision in the McGahn case. The full court ruled that Congress does have standing to enforce its subpoena against McGahn. This was a no-brainer in light of the recent Supreme Court decision in Mazars, but I did want to take a moment to remind you of what I said about the original panel decision back in February:

The one thing Turley says that I agree with is that he believes the court is wrong to say these are not justiciable matters. For example, in Zivotofsky v. Clinton (h/t to University of Texas law professor Steve Vladeck), the Supreme Court confronted a case where the issue was as follows:

Congress enacted a statute providing that Americans born in Jerusalem may elect to have “Israel” listed as the place of birth on their passports. The State Department declined to follow that law, citing its longstanding policy of not taking a position on the political status of Jerusalem.

Like the appeals court in the McGahn case, the D.C. Circuit Court of Appeals agreed with the government in Zivotofsky that the case was not the type of matter in which Article III courts should involve themselves. Without providing a resolution to the underlying dispute, instead sending it back to the lower courts for a substantive decision, the Supreme Court in an opinion by Chief Justice Roberts rejected the idea that this was not a matter for the courts, writing:

Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case.

The McGahn case does not present the exact same scenario, but I think the same principle applies.

. . . .

Zivotofsky proves that the political question doctrine doesn’t kick in simply because the branches in question are Congress and the presidency (as opposed to Article III courts and the presidency, as in Nixon) — even if the executive has a dispute with Congress over whether a congressional action impinges on the executive’s constitutional powers.

And here are a couple of passages from today’s opinion. Note the references to Zivotofsky, here:

Zivotofsky 1 Better

and here:

Zivotofsky 2

Always trust content from Patterico, especially when he is stealing content from U.T. Law professor Steve Vladeck.

26 Responses to “En Banc D.C. Circuit Rules House Can Seek to Enforce Subpoena Against McGahn in Court”

  1. Another predictable ruling form the court that Obama & Reid packed by ending filibusters.

    Kevin M (ab1c11)

  2. Out of the twelve DC Circuit full judges, four are Obama appointees and three are Trump appointees. The myth has gone stale.

    nk (1d9030)

  3. Meanwhile monies laundered by kolomoisky from the collapse of privat end up in miami and cleveland, while we chase the coindealer and bloombergs manservant;

    Narciso (7404b5)

  4. Look at the other side of the coin. If Congressional subpoenas are not justiciable, wouldn’t a writ of habeas corpus to Congress, when the Capitol police bodily dragged McGhann into the hearing room, also not be justiciable?

    nk (1d9030)

  5. Based on what grounds? What legitimate inquiry.

    Narciso (7404b5)

  6. RIP Brent Scrowcroft (95)

    Rip Murdock (d2a2a8)

  7. Whatever. Nancy Pelosi wants to measure his inseam. It’s not justiciable. Capeesh?

    nk (1d9030)

  8. its ridiculous to suggest that mr president trump who is gods last best hope should be subject to the laws of men

    Dave (1bb933)

  9. I am glad that UT Law professors and graduates still care about the law.

    DRJ (aede82)

  10. We find that the supposed matters like with flynns actual transcripts the validity of the dossier that was the pretext were less than meet the eye.

    Narciso (7404b5)

  11. The opinion says two of the Judges appointed by Trump did not participate in the decision. Maybe they recused.

    DRJ (aede82)

  12. Curious if this get challenged to SCOTUS…

    whembly (c30c83)

  13. I generally like things that increase Congress’s power of oversight. Most of the expansion of government today happens by the executive branch. This will in a small way help make government smaller.

    Time123 (ea2b98)

  14. What do you think about the DC Circuit requiring parties to address whether the case should be reassigned to another judge, not Judge Sullivan?

    TW2020 (f98395)

  15. Flynn had asked for that in the first place in his petition for the writ of mandamus. Rao blew it off in her decree to Sullivan, but it’s still part of the case. What it signals the most, if anything at this point, is that the inquiry that Sullivan wanted to make will take place, but not before Sullivan.

    nk (1d9030)

  16. @16

    What it signals the most, if anything at this point, is that the inquiry that Sullivan wanted to make will take place, but not before Sullivan.

    nk (1d9030) — 8/7/2020 @ 11:00 am

    What makes you say that?

    If the en banc agrees that Sullivan is in fact, a petitioner all that means is that Sullivan would have to step aside.

    The new Judge would have to redo a lot of the hearing…right? Such as, the defense would have a new opportunity to plead ‘not guilty’. Right? (I believe Flynn’s original judge accepted the original plea, but when Judge Sullivan took over he redid that hearing).

    I’m a little fuzzy, but I’m not so sure that a new Judge would just “pick up” right where Sullivan left…

    whembly (c30c83)

  17. The new judge, if there is one, will pick up where the Court of Appeals left off. He will do as the Court of Appeals directs. A new judge is not a new indictment. What has already happened in the case is the law of the case, and that includes the guilty plea.

    nk (1d9030)

  18. He wont look at the evidence either then?

    Narciso (7404b5)

  19. 20… LOL, good one, narciso!

    Colonel Haiku (2601c0)

  20. He can look at whatever he wants. What he can’t do is be a Court of Appeals for rulings Sullivan already made. Only the actual Court of Appeals can do that.

    nk (1d9030)

  21. There was no case, judge contreras now appriving of proxy voting rightfully recused.

    Narciso (7404b5)

  22. R.I.P. Executive Privilege. 1789-2020

    How much longer before the lawyer-client privilege falls to some “real good reason”?

    Kevin M (ab1c11)

  23. Important legal precedent, but for purposes of this case, a Pyrrhic victory. Trump effectively ran out the clock. But so what? If the Vichy GOP wouldn’t hear an NSA’s testimony that Trump sold out our national security for personal gain, I doubt they’d care if Trump admitted to burying partially eaten hookers in the desert.

    lurker (d8c5bc)

  24. This case was about the justiciability of the Congressional subpoenas, not executive privilege. McGahn can still claim executive privilege, and if Congress cites him for contempt, like it did William Barr and Wilbur Ross, Barr can prosecute him along with himself and Ross. 😉

    nk (1d9030)


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