House gets new chance at court challenge of Trump’s wall construction, McGahn subpoena

The full U.S. Court of Appeals for the District of Columbia Circuit agreed to hear oral arguments on both cases

Don McGahn, former White House counsel, is seen in the Capitol in April 2019. A subpoena for McGahn to testify in the House is one of the congressional authority lawsuits against the Trump administration a Washington appeals court agreed to take up Friday.  (CQ Roll Call)
Don McGahn, former White House counsel, is seen in the Capitol in April 2019. A subpoena for McGahn to testify in the House is one of the congressional authority lawsuits against the Trump administration a Washington appeals court agreed to take up Friday. (CQ Roll Call)
Posted March 13, 2020 at 6:00pm

The House will get new chances to press congressional authority next month in two of the biggest lawsuits against the Trump administration — efforts to enforce a subpoena against former White House Counsel Don McGahn and stop the construction of a wall on the U.S. border with Mexico.

The full U.S. Court of Appeals for the District of Columbia Circuit on Friday agreed to hear oral arguments on both separation-of-powers cases on April 28. The focus will be on whether the House has the legal right to bring each of the suits in the first place.

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The decision to rehear the McGahn case gives new life to the House Judiciary Committee's lawsuit to have him testify about episodes from former special counsel Robert S. Mueller III’s report on Russian interference in the 2016 presidential election and President Donald Trump’s moves to try to stymie that investigation.

It vacates a Feb. 28 decision from a three-judge panel of the D.C. Circuit that threw out the committee’s lawsuit.

And the full D.C. Circuit move also revives the House’s lawsuit to challenge the administration plan to spend up to $8.1 billion for construction of southern border barriers as a violation of the appropriations clause of the Constitution that usurps Congress’ authority.

The full appeals court will look at a June 2019 decision that found the House did not have the right to bring the case.

The Democratic-run House could find a more receptive bench with the 11 judges of the full D.C. Circuit, since a majority of those judges were appointed by Democratic presidents.The three-judge panel on the McGahn case included a George W. Bush appointee and a Trump appointee, who were in the majority. U.S. District Judge Trevor N. McFadden, who declined the House request to stop the wall construction, is a Trump appointee.

Had the full D.C. Circuit allowed the panel decision on McGahn to stand, it would have dealt a blow to congressional oversight power since the panel found that federal courts could not step in and enforce a congressional subpoena because it was a political dispute between the branches.

At issue in the case is whether McGahn has to honor a committee subpoena or if the close presidential adviser enjoys “absolute immunity” from such testimony.

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.

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In ruling against the House, the three-judge panel cited Supreme Court precedents about the right of lawmakers to bring lawsuits, and rejected the House argument that it suffered an “institutional injury” that gives it standing.

The House argued that it had the “sole Power of Impeachment” and a broad power to investigate, and McGahn’s refusal to appear impedes an investigation that harmed its right to compel information.

In the border wall case, McFadden ruled that the courts were not the place to settle this dispute over congressional appropriations power.

The Democrat-led House filed the lawsuit challenging parts of the administration plan to spend up to $8.1 billion for construction of southern border barriers, arguing that Congress had turned aside Trump’s request for $5 billion and instead appropriated $1.375 billion.

In both cases, the judges ruled that courts shouldn’t settle the dispute between political branches because the House has institutional tools necessary to remedy any harm caused by the administration’s actions.