Arrest McGahn? House hints of possibility in court filing on subpoenas

The move would be an effort to force federal courts to decide whether congressional subpoenas can be enforced

Former White House counsel Don McGahn listens to testimony in the Senate Judiciary Committee. A recent House filing hinted that it might have to arrest McGahn and other officials to force federal courts to decide whether congressional subpoenas can be enforced. (Tom Williams/CQ Roll Call)
Former White House counsel Don McGahn listens to testimony in the Senate Judiciary Committee. A recent House filing hinted that it might have to arrest McGahn and other officials to force federal courts to decide whether congressional subpoenas can be enforced. (Tom Williams/CQ Roll Call)
Posted March 6, 2020 at 1:42pm

The House hinted Friday that it might have to arrest former White House Counsel Don McGahn and other Trump administration officials to force the federal courts to decide whether congressional subpoenas can be enforced against current and former executive branch officials.

Lawyers for the House Judiciary Committee made the statements in a petition to have the full U.S. Court of Appeals for the District of Columbia Circuit rehear its lawsuit to force McGahn to testify as part of a probe into the actions of President Donald Trump.

[House suit seeking McGahn testimony tossed by appeals court]

Last week, a three-judge D.C. Circuit panel ruled that Congress doesn’t have the right to have courts enforce its subpoenas, and instead pointed to political tools the House can use to check a president who blocked congressional oversight efforts.

The House lawyers wrote Friday that those tools “only invite further constitutional brinkmanship and are poor substitutes for judicial subpoena enforcement,” such as using Congress’s inherent contempt power to arrest officials who could then bring legal challenges to their detention.

“The House could direct its Sergeant at Arms to arrest current and former high-level Executive Branch officials for failing to respond to subpoenas, after which the legal issues dividing the branches would then be litigated through habeas actions,” the House lawyers wrote. “But arrest and detention should not be a prerequisite to obtaining judicial resolution of the enforceability of a Congressional subpoena.”

Among the criticisms of the panel’s decision in Friday’s petition, the House pointed out that the three judges appeared to agree that courts could decide whether Congress can enforce its subpoenas if presented with those legal challenges to detention.

“Under the panel’s logic, to obtain resolution of the legal question here, the House must direct its Sergeant at Arms to arrest McGahn,” the House wrote. “The Court would be faced with the same legal issues in McGahn’s inevitable habeas petition and would surely find them appropriate for judicial consideration.”

House General Counsel Doug Letter, in an oral argument in January in a different case about the House petition to get grand jury information from the Mueller probe, warned a different panel of the D.C. Circuit that such tactics could risk violence.

“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.”

The D. C. Circuit panel on Feb. 28, in a 2-1 ruling, declined to rule on whether McGahn had to honor a committee subpoena or if the close presidential adviser enjoys “absolute immunity” from such testimony. Instead, the majority found that federal courts had no role to play in such a clash between the political branches.

The House filed the lawsuit to force McGahn to testify about episodes from former special counsel Robert S. Mueller III’s report on Russian interference in the 2016 presidential election and Trump’s moves to try to stymie that investigation.

Some House Democrats pointed to the McGahn case as the test case for enforcing more subpoenas in their oversight investigations into the Trump administration, which culminated in December with the impeachment of Trump for abuse of power and obstruction of Congress.

The panel ruling, if it stands, would mean Congress might have lost the threat of filing a lawsuit to enforce a subpoena against the executive branch.

“The Committee’s petition argues that the panel’s ruling misread binding precedent and — if allowed to stand — would severely undermine the House’s ability to perform its constitutional functions as a check on the Executive Branch," House Judiciary Committee Chairman Jerrold Nadler of New York said in a news release.

“In fact, none other than President Trump’s own lawyers told the American people over and over again during the impeachment trial that the House should have gone to court to enforce its subpoenas,” Nadler said.

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