WASHINGTON — President Trump has won a federal appeals court ruling that will make it more difficult for House Democrats to summon his aides to testify.
Judges on the U.S. Court of Appeals for the D.C. Circuit on Friday overturned a November ruling from U.S. District Judge Ketanji Brown Jackson, who ordered former White House Counsel Don McGahn to testify in since concluded impeachment proceedings.
McGahn, represented by the Justice Department, had followed Trump’s order not to comply with a House subpoena, citing executive privilege.
Two of three judges on an appeals panel found that the House Judiciary Committee lacked standing to bring its lawsuit, handing Trump a win as Democrats continue to pledge investigations.
Appeals court judges Thomas Griffith and Karen Henderson found the dispute was a political issue not suited for judicial review; Judge Judith Rogers dissented.
Attorneys for the Democrat-controlled House Judiciary Committee argued in January that McGahn’s testimony might be valuable in a second round of impeachment efforts.
Judiciary Committee attorney Doug Letter told the judges during arguments the case was important in part because Democrats could bring another article of impeachment against Trump. “Yes, that is on the table. There’s no doubt,” Letter said.
In handing Trump a win, the judges reversed a ruling that had emboldened Democrats. “Presidents are not kings,” District Judge Jackson wrote in his November decision.
The appeals panel pointed to historical practice of courts not stepping between Congress and the executive branch. Tools such as spending bills and nomination votes can be used to coerce the executive branch.
“The absence of a judicial remedy doesn’t render Congress powerless. Instead, the Constitution gives Congress a series of political tools to bring the Executive Branch to heel,” Judge Griffith wrote.
Griffith warned that the appeals court would see a tremendous uptick in lawsuits if it became the referee in such disputes.
“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,” Griffith wrote.
“The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’ lawyers to make the trip often.”
In a concurring opinion, Henderson agreed with Griffith that the committee Democrats lacked standing, but chided categorical refusal to cooperate with lawmakers.
“A categorical refusal to participate in congressional inquiries strikes a resounding blow to the system of compromise and accommodation that has governed these fights since the republic began,” she wrote.