D.C. Circuit Panel Rules Against House in McGahn Case

Elliot Setzer
Monday, August 31, 2020, 2:48 PM

Published by The Lawfare Institute
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A divided panel on the U.S. Court of Appeals for the D.C. Circuit decided on Aug. 31 that the House of Representatives' lawsuit to enforce their subpoena against former White House counsel Don McGahn must be dismissed. The court found that the House’s Committee on the Judiciary lacks a cause of action to bring the suit because no statute gives the chamber authority to do so.

In a 2-1 ruling, the court held that the House lacks authority under the Constitution or federal law to seek judicial enforcement of a subpoena against an executive branch official. On behalf of the majority, judge Thomas Griffith—who is retiring from the court effective Sept. 1—wrote that the decision does not preclude Congress “from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit.”

In a dissenting opinion, judge Judith Rogers wrote that the House’s ability to seek judicial enforcement of its subpoenas is implied in Article I of the constitution.

The decision comes after the full appeals court on Aug. 7 held that the House committee does have standing to seek enforcement of its subpoena. The en banc court remanded the case to the original three-judge panel to address whether the committee had a cause of action to bring its claim, among other matters.

The House of Representatives will likely appeal the case once again to the full bench of the D.C. Circuit court.

You can read the full decision here and below:

Elliot Setzer is a Knight-Hennessy Scholar at Stanford Law School and a Ph.D student at Yale University. He previously worked at Lawfare and the Brookings Institution.

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