Let’s begin with an apparently easy question: when the executive branch, the president, and the legislative branch, the Congress, are engaged in a battle about what the law requires, which branch of government should decide who is right?
Hold that thought. I have another question. When the federal courts conclude that the president is acting unconstitutionally, is it OK for the judiciary to duck the issue and decide to do nothing? Really, this is a serious question. Answers upcoming.
Not my answers. Rather the answers provided on Feb. 28 by the U.S. Court of Appeals for the District of Columbia Circuit in the case of the Committee on the Judiciary of the U.S. House of Representatives v. Donald McGahn II.
The D.C. Circuit — circuit courts are one rung below the Supreme Court — is often referred to as the second most powerful court in the country, both for the importance of the cases it decides and the weight given to its opinions.
Donald McGahn II, you will recall, was the White House counsel. The House Judiciary Committee issued a subpoena for him to appear and testify before the body because McGahn, as an eyewitness, knows a lot about Trump’s efforts to obstruct justice in the Russia investigation.
Fearing — for good reason — that McGahn would refuse to commit perjury for him (there previously had been lines McGahn would not cross), Trump stonewalled. The executive branch would provide no testimony, no documents and no cooperation. Nothing. Trump ordered McGahn to defy the subpoena.
The justification? The president claimed that all his minions enjoy absolute immunity from appearing before Congress even when, particularly when, Congress is performing its most fundamental duty — oversight of the executive branch. This is a radical view of presidential power. It is the legalistic version of Trump’s mantra — that as president he can do whatever he wants.
This is probably as good a time as any to tell you, in case you don’t know, that Trump won in the D.C. Circuit case.
Courts of Appeals usually sit in panels of three judges. This decision was 2-1. It reversed the decision of the federal district court, which had rejected Trump’s and the Department of Justice’s absolute immunity theory.
Appeal Court Judge Thomas B. Griffin, writing for the majority, decided that the judiciary should not become involved in a case which pitted the other two branches of government against each other. He explained that such involvement would make for a messy judicial affair; there could be quite a few of these suits about seeking information from the executive branch.
And upholding the subpoena wouldn’t necessarily resolve the controversy because if McGahn invoked executive privilege to not answer some questions, the case would end up back in the lap of the federal courts again. Remember, the issue before this Court was not a refusal to answer any specific question, but rather whether a lawfully subpoenaed witness, on the president’s order, could refuse to appear at all.
This is an unusual case. There is little precedent. Generally, these disputes between the executive and legislative branches about providing information have been worked out because the threat of a lawsuit to compel a witness’ attendance or production of documents hovers omnipresent over the negotiations.
As the dissenting judge, Judith W. Rogers, pointed out, the majority opinion “removes any incentive for the executive branch to engage in the negotiation process … assures future presidential stonewalling and … impairs the House’s ability to perform its constitutional duties.”
The decision is rich with irony. For starters, it deflates Trump’s impeachment defense argument that the House’s impeachment was illegitimate because the Democrats should have waited for the courts to decide the subpoena issue (and presumably order the witnesses in some fashion to testify).
Here’s the really weird part. The third judge, Karen L Henderson, in her concurring opinion, rejected Trump’s and the Department of Justice’s argument that McGahn was “absolutely immune” from appearing before Congress.
But after saying that Trump’s radical position on executive power was wrong, Judge Henderson then, as a practical matter, granted President Trump the absolute immunity she decided he doesn’t have. The judge did this by agreeing that Courts faced with such a controversy should abstain from making a decision, should do nothing and should dismiss the case.
The two other branches, the majority explained, should figure it out by themselves without judicial oversight even when, as this case vividly demonstrates, they can’t. The Court’s decision gives this president, and those that follow, unilateral and unreviewable power to keep Congress in the dark. It is another step toward authoritarianism.
This decision could be the final word in this matter. It is also possible that the full Court of Appeals could agree to rehear the case (called en banc review). Or the House of Representatives could, in addition or instead, request that the Supreme Court decide the case, a fraught request given the current composition of the court.
It has been a foundational belief that democracy in the United States depends on the three coequal branches of government. The Circuit Court’s opinion takes a judicial chainsaw to this three-legged stool on which our democracy rests and slices off a chunk of one of those legs.
Bill Newman is a Northampton-based attorney and radio show host. His column appears the first Saturday of the month.