The DC Court of Appeals dismissed a case brought by the House of Representatives seeking to force former White House counsel Don McGahn to testify.
In a 2-1 decision, the US Court of Appeals for the District of Columbia Circuit ruled it wouldn’t police the standoff between the House Judiciary Committee and the White House…
The House has said it still wants to question McGahn about potentially obstructive behavior from the President toward the Russia investigation, which McGahn witnessed and had disclosed to former special counsel Robert Mueller.
The House won at the trial-court level, with an emphatic opinion from the judge saying, “presidents are not kings.”
The ruling, which you can read in full here, goes on at length arguing that the Courts have no generalized role in settling political disputes between the other two branches of government.
The Committee’s suit asks us to settle a dispute that we have no authority to resolve. The Constitution does not vest federal courts with some “amorphous general supervision of the operations of government.” Raines, 521 U.S. at 829 (internal quotation marks omitted); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring) (“The Framers, however, did not make the judiciary the overseer of our government.”). Instead, as Chief Justice Marshall explained, federal courts sit “to decide on the rights of individuals.”…
The Constitution imposes limitations on the “judicial Power” for good reason. Interbranch disputes are deeply political and often quite partisan. Compare, e.g., Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013), with Sandra Hernandez, Partisan Politics Plague Probe of “Fast and Furious,” L.A. TIMES (Mar. 29, 2012). By restricting the role of the judiciary, Article III preserves the “public confidence” in the federal courts by preventing “[r]epeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government.” Valley Forge Christian Coll. v. Ams.
United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982) (internal quotation marks omitted). If we throw ourselves into “a power contest nearly at the height of its political tension,” Raines, 521 U.S. at 833 (Souter, J., concurring in the judgment), we risk seeming less like neutral magistrates and more like pawns on politicians’ chess boards.In this case, the dangers of judicial involvement are particularly stark. Few cases could so concretely present a direct clash between the political branches. The Committee opened an investigation into possible presidential wrongdoing, which culminated in articles of impeachment against the President. The Committee claims that, in furtherance of this investigation, McGahn must testify about events that occurred during his tenure as White House Counsel. Meanwhile, the
President denies all wrongdoing, and he has instructed McGahn not to testify…Or simply consider this case. If we order McGahn to testify, what happens next? McGahn, compelled to appear, asserts executive privilege in response to the Committee’s questions. The Committee finds those assertions baseless. In that case, the Committee assures us, it would come right back to court to make McGahn talk. See Oral Arg. Tr. 60:25-61:1. 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.
The Court concludes: “We lack jurisdiction to hear and therefore dismiss the Committee’s lawsuit because it does not present an Article III case or controversy. The judgment is vacated, and the case is remanded with instructions to direct that the complaint be dismissed.”
You may recall that during the impeachment, Jonathan Turley recommended that Democrats abandon their second article dealing with obstruction of justice in order to save their case. Today, in light of the DC Court of Appeals decision, Turley argued this further proves the obstruction charge was premature:
The DC ruling further demonstrates that Article 2 on obstruction of congress was premature, as I testified. The White House is vindicated in showing that it had valid constitutional arguments to make — arguments ridiculed at the Senate trial . . . https://t.co/QJewtgZxeE
— Jonathan Turley (@JonathanTurley) February 28, 2020
I do not agree with the court’s analysis but I felt that Trump had a right to seek judicial review. Now that judicial review has shown that the court agrees with his constitutional https://t.co/VVW3cJhSc7 reaffirms the historic blunder of the House in rushing this impeachment
— Jonathan Turley (@JonathanTurley) February 28, 2020
Rather than wait for courts to review immunity and privilege arguments, the House impeached Trump for seeking judicial review. Now the court says that he was right in raising his constitutional objections. Article 2 now looks like a case of prosecutorial excess, if not abuse.
— Jonathan Turley (@JonathanTurley) February 28, 2020
It said that Trump cannot be compelled to produce such witnesses, not that he was right to do so. The Court does say that Congress can seek to hold such officials in contempt or even impeach them. However, the court called these “intramural disagreements.”
— Jonathan Turley (@JonathanTurley) February 28, 2020