The opinion, written by GOP appointee Thomas Griffith, goes to the heart of long-running battles over the power balance between Congress and the White House that have played out during Trump’s tenure.
Echoing arguments Justice Department attorneys had made in the case, Griffith warned that allowing the House to use the courts to enforce the subpoena against McGahn would lead to a flood of hard-to-resolve suits pitting congressional imperatives against executive branch interests.
“The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often,” wrote Griffith, an appointee of President George W. Bush.
Griffith said opening the courts to that kind of litigation would also discourage both sides from the more traditional method of resolving such subpoena fights: negotiation. Congress has long used several tools — cutting off funding, holding up presidential nominees, even impeachment — to help persuade the executive branch.
“Adjudicating these disputes would displace this flexible system of negotiation, accommodation, and (sometimes) political retaliation with a zero-sum game decided by judicial diktat,” Griffith wrote.
As it has for years, the Justice Department contended that top presidential advisers like McGahn and other Trump administration officials enjoy “absolute immunity” from speaking to congressional investigators. While the majority on the appeals court did not not endorse the “absolute immunity” argument Friday, it did back an alternative DOJ contention that federal courts should not get involved in a dispute between the other two branches of government.
Indeed, while Judge Karen Henderson endorsed Griffith’s opinion, she explicitly rejected the administration’s claim of absolute immunity.
“McGahn’s assertion of absolute testimonial immunity against compelled congressional process is, in my opinion, a step too far, again, under Supreme Court precedent,” wrote Henderson, an appointee of President George H.W. Bush
At issue in the McGahn testimony case is the House Judiciary Committee’s long-running bid to question McGahn about what he told Mueller’s team during the more than 30 hours the ex-White House counsel met with investigators as part of their probe into Russian interference in the 2016 presidential election.
In a redacted version of Mueller’s final report, McGahn’s name appears more than 150 times, often during passages recounting the president’s attempts to kill or stymie the Russia investigation.
Democrats pivoting off the Mueller investigation issued a subpoena last April for documents and testimony from McGahn, but he skipped out on a scheduled hearing appearance with backing from a Justice Department legal opinion.
The House then sued McGahn. Last November, it secured a victory when U.S. District Court Judge Kentanji Brown Jackson said McGahn couldn’t hide behind the Trump administration’s claim of “absolute immunity.”
The dissenting vote on the three-judge panel backing Jackson’s original ruling came from Judge Judith Rogers, an appointee of President Bill Clinton. She emphasized that the demand for McGahn’s testimony came during an impeachment inquiry, adding that her colleagues’ refusal to enforce the House subpoena effectively gutted Congress’s impeachment powers.
“In the context of impeachment, when the accuracy and thoroughness of the investigation may well determine whether the President remains in office, the House’s need for information is at its zenith,” Rogers wrote.
In his majority opinion, Griffith conceded that in some situations, possibly including the current dispute over McGahn’s testimony, cutting off lawmakers’ ability to appeal to the courts will mean Congress does not get the testimony it is seeking.
“Sometimes, those tools will yield fewer concessions than Congress might wish, but the remedy for that perceived wrong is in politics or at the ballot box,” the judge wrote.
However, Rogers warned turning lawmakers away from the courts could goad Congress into more extreme enforcement measures, potentially including use of the long-dormant “inherent contempt” powers to physically detain recalcitrant witnesses.
“It suffices here to note that the prospect that the House will direct its Sergeant at Arms to arrest McGahn is vanishingly slim, so long as a more peaceable judicial alternative remains available,” she wrote.
A spokesman for the House Judiciary Committee didn’t immediately respond to a request for comment on Friday’s ruling, which sets a March 9 deadline for Democrats to file any appeals either for another hearing before the same three-judge panel, or to seek review before the entire court.
The House could also go directly to the Supreme Court, but with arguments for this term already set, final resolution of the dispute by the justices would almost certainly come after the November election.