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House Democrats can’t subpoena former White House counsel, appeals court rules

The decision on Monday to shut down the subpoena case means the Democrat-led House of Representatives is unlikely to hear from McGahn or gain the ability to force top executive branch officials to testify about the President, especially before the election or before the current Congress ends in early 2021.

The appeals court said Monday that the House’s lawsuit against McGahn must be dismissed.

The court reasoned that if it wanted to enforce subpoenas like this in court, Congress should pass a law allowing the House to do so.

In the 2-1 decision, the appeals court says there’s no reason or law that allows the House to sue over McGahn’s refusal to testify.

“We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit,” Judge Thomas Griffith wrote in the opinion Monday.

Previously, the same split panel of three judges said the House didn’t have the ability to take the executive branch to court over a subpoena. But then the full appeals court disagreed, sending the case back to the same three judges.

Six House committee chairs said Monday they will appeal the ruling.

“Today’s decision in the McGahn case is clearly in error,” the Democrats said in a statement. “House Committee Chairs from both parties have previously and successfully relied on the courts to enforce subpoenas — to hold otherwise would undermine a critical constitutional check on the executive branch. Just as the last decision of the panel was appealed and reversed, we expect to appeal this decision without delay to the full D.C. Circuit.”

This story has been updated with comment from House Democrats.


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