A federal appeals court in Washington heard warnings Friday that how they rule in the House Judiciary Committee’s legal fights for information from the Trump administration could spark an avalanche of congressional lawsuits, or even a potential gunfight between the House sergeant at arms and the FBI security detail for Attorney General William Barr.
Two separate panels of the U.S. Court of Appeals for the District of Columbia Circuit heard nearly three hours of oral argument on two committee cases related to former Special Counsel Robert S. Mueller III’s report on Russian interference in the 2016 election. Both were filed months before the House voted to impeach President Donald Trump on his dealings with Ukraine.
The committee filed a lawsuit to force former White House Counsel Don McGahn to testify about episodes from Mueller’s report. In the other case, the committee wants access to secret grand jury materials from that same investigation.
Lower courts have ruled that McGahn must testify before the committee and the Justice Department must give the grand jury material to the committee. The D.C. Circuit panels can now decide at any time whether those rulings were right.
In the McGahn case, Hashim Moopan of the Justice Department urged the judges to rule that they must stay out of what was essentially a purely political fight. The House contends that Trump is conducting broad obstruction of Congress, while Trump contends the House is conducting an illegitimate investigation into a president.
A ruling that the House can go to the courts to enforce a subpoena against executive branch officials such as McGahn means that the court will have to decide similar cases over and over, Moopan said, and the public will wonder why the courts are deciding who is right.
“This court will be in the business of resolving disputes between the branches over information,” Moopan said. “It won’t be good for the courts, and it frankly won’t be good for either of the political branches, because sometimes the House will lose some of those cases and then they will have less power than they had before.”
Instead, Moopan suggested that Congress has a lot of tools to compel the executive branch to turn over information, such as blocking appropriations, other legislation or nominations.
Things turned a little wilder in the argument on the case about grand jury materials, when Judge Neomi Rao asked House General Counsel Doug Letter a hypothetical question.
Rao asked: If the D.C. Circuit authorized the House to get the grand jury information from the Justice Department — instead of ordered the DOJ to turn it over as the lower court had done — would the House have to then have to subpoena the Justice Department for that information?
Rao said she was unable to find any case in which a court ordered the DOJ to release grand jury information to Congress, and that the Justice Department couldn’t tell them today whether the Justice Department would turn the information over without an order to do so.
Letter said it was “stunning” to think that Barr would not turn over the information if the D.C. Circuit ruled that the House was entitled to it. The House would have to send out its sergeant at arms to collect the grand jury information if the court did not order the DOJ to turn it over, Letter said.
“That’s why we don’t do that anymore. We don’t have the sergeant at arms go out and arrest people, and maybe have a gun battle with Mr. Barr’s FBI security detail. Instead, we go to court,” Letter said. “Everybody has recognized that we go to court.”
Letter said there’s no case that comes anywhere close to saying Congress cannot go to court to enforce its investigatory powers for oversight or impeachment.
And Letter had some sarcasm for the argument that Congress should forgo lawsuits and instead use its inherent contempt power to physically arrest those who don’t turn over information to Congress — which hasn’t been used since the 1920s — or its appropriations power.
“The sergeant at arms will arrest Attorney General Barr next time he’s up at Congress, I’ve run into him in the halls there, so next time he’s there we’ll just arrest him,” Letter said. “And we can we can go about it that way, or we can shut down the government. There’s a great way for Congress to get information, we’ll shut down the entire government for a couple of months. We saw what a disaster that was.”