WASHINGTON — A federal appeals court ruled on Friday that Congress could not sue to enforce its subpoenas of executive branch officials, handing a major victory to President Donald Trump and dealing a severe blow to the power of Congress to conduct oversight.
In a ruling that could have far-reaching consequences for executive branch secrecy powers long after Trump leaves office, a divided three-judge panel of the Court of Appeals for the District of Columbia dismissed a lawsuit brought by the House Judiciary Committee against Trump’s former White House counsel, Donald McGahn.
On Trump’s instructions, McGahn defied a House subpoena seeking to force him to testify about Trump’s efforts to obstruct the Russia investigation. The House sued him, seeking a judicial order that he show up to testify, and winning in district court in November.
But two of the three appeals court judges ruled on Friday that the Constitution gave the House no standing to file any such lawsuit in what they characterized as a political dispute with the executive branch. If their decision stands, its reasoning would shut the door to judicial recourse whenever a president directs a subordinate not to cooperate with congressional oversight investigations.
“The committee now seeks to invoke this court’s jurisdiction to enforce its subpoena,” wrote Judge Thomas Griffith. The Justice Department, “on behalf of McGahn, responds that Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.”
“We agree and dismiss this case,” he wrote.
Griffith said that Congress had political tools to induce presidents to negotiate and compromise in disputes over oversight demands for information about the government — like withholding appropriations or derailing the president’s legislative agenda — and that courts should not be involved.
“The absence of a judicial remedy doesn’t render Congress powerless,” he wrote, adding, “Congress can wield these political weapons without dragging judges into the fray.”
But the dissenting judge, Judith Rogers, warned that the ruling would embolden presidents to flout legislative oversight and deprive lawmakers of a powerful tool to obtain information they sought, undermining core prerogatives of Congress enshrined in the Constitution.
“The court removes any incentive for the executive branch to engage in the negotiation process seeking accommodation, all but assures future presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties,” she wrote.
The ruling deflates a primary argument used by Trump’s defense team to question the legitimacy of the impeachment process, when they insisted that the House should have pursued all of its legal avenues to secure testimony rather than charging the president with obstruction of Congress. But even as the impeachment trial unfolded, the Justice Department was arguing in the McGahn case that such lawsuits are invalid, and ultimately, the court adopted that reasoning.
If it stands, the ruling could halt a growing trend of Congress resorting to lawsuits to enforce its oversight powers in a polarized era when previous norms of bipartisan cooperation have broken down. It was once vanishingly rare for Congress and the executive branch to square off in court, but it has become increasingly common — especially in the past year, after Trump vowed to stonewall “all” oversight subpoenas by House Democrats.
Brianna Herlihy, a spokeswoman for the Justice Department, which was defending McGahn in court, said the Trump administration was “extremely pleased” with the ruling, calling it historic.
“Suits like this one are without precedent in our nation’s history and are inconsistent with the Constitution’s design,” she said. “The DC Circuit’s cogent opinion affirms this fundamental principle.”
Spokesmen for House Speaker Nancy Pelosi and Rep. Jerrold Nadler of New York, the chairman of the House Judiciary Committee, had no immediate comment. But it seemed likely that the House would appeal to the full appeals court to rehear the case.
Both judges in the majority were appointed by Republican presidents — Griffith was appointed George W. Bush, and Judge Karen L. Henderson, who joined him in the decision, was appointed by George H.W. Bush. Rogers was appointed by Bill Clinton.
The ruling was the latest in a string of developments that have eroded Congress’ power to subpoena information from the executive branch. Originally, Congress was understood to have “inherent contempt” power to arrest recalcitrant witnesses, but that is now seen as unrealistic.
Under administrations of both parties, the Justice Department has refrained from charging executive branch officials with criminal contempt of Congress for refusing to comply with a subpoena when the president has invoked executive privilege, even when Congress disputes whether the invocation was valid.
Against that backdrop, the prospect of a civil lawsuit asking a judge to order an executive branch official to comply with a subpoena has been the rare remaining tool to incentivize presidents to negotiate with Congress in an information dispute and try to reach an accommodation.
The case against McGahn was just the first of several brought last year against the executive branch by House Democrats seeking to enforce their subpoenas. Others included efforts to obtain Trump’s tax returns and internal documents showing why his administration attempted to include a citizenship question on the 2020 census.
Trump had instructed McGahn not to show up, declaring that his former legal aide was “absolutely immune” from being compelled to testify about his duties, meaning he had no obligation to appear.
In a twist, Henderson wrote in a concurring opinion that she disagreed with that argument. Along with Rogers’ rejection of it, that meant there was a shadow majority against the absolute-immunity theory. But since Henderson joined Judge Griffith in asserting that Congress could not file lawsuits to enforce its subpoenas in the first place, it didn’t matter.
A federal-district court judge rejected the absolute immunity theory in a 2008 case involving a congressional investigation into the Bush administration’s firings of U.S. attorneys, one of the first lawsuits by Congress to enforce a subpoena for executive branch information. The case was resolved, however, without any definitive appeals court ruling.
In 2012, there was another subpoena lawsuit brought by House Republicans related to the botched gun-trafficking case known as Operation Fast and Furious. That case involved documents, not testimony, and it was also resolved without any definitive appeals court ruling on whether the House had a right to bring it in the first place.
Late last year, after House Democrats sued McGahn, another lower-court judge again rejected the claims that the House had no standing to sue and that a former top White House aide is absolutely immune, ordering him to comply with the subpoena.
But in throwing out the case, Griffith worried that the judiciary was getting increasingly dragged into sticky political disputes. He pointed out that if McGahn did show up but Trump then invoked executive privilege to block him from answering specific questions, the same matter would end up right back in court.
Rogers, however, noted that at least since the Watergate scandal nearly 50 years ago, the threat of a potential lawsuit has hung over such negotiations. Removing that threat, she argued, would thus disrupt — not reaffirm — the process for resolving information disputes.
“Future presidents may direct wide-scale noncompliance with lawful congressional inquiries, secure in the knowledge that Congress can do little to enforce a subpoena dramatically undermining its ability to fulfill its constitutional obligations now and going forward,” she warned.