D.C. Circuit Will Consider McGahn House Testimony Case En Banc
After the D.C. Circuit Court of Appeals ruled in a divided panel opinion that the Committee on the Judiciary of the U.S. House of Representatives (“Committee”) lacked standing to seek judicial enforcement of subpoenas against current and former Executive Branch officials, the Committee petitioned the appeals court for rehearing en banc. On March 13, 2020, the appeals court vacated the earlier judgment, and granted the Committee’s petition, agreeing to a rehearing of the matter before all of the judges of the appeals court.
The D.C. Circuit Court of Appeals grants petitions for rehearing en banc only when a majority of the circuit judges who are in regular active service and who are not disqualified order that an appeal may be reheard en banc. These rehearings are “not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” See Federal Rules of Appellate Procedure 35(a).
In its petition, the Committee argued that the divided panel created a conflict within the Circuit. Specifically, the Committee argued that the decision conflicted with the appeals court’s decision in United States v. American Telephone & Telegraph Co. (AT&T I), 551 F.2d 384 (D.C. Cir. 1976) (citing Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc)). The Committee also argued that the decision relied heavily on a Supreme Court case, Raines v. Byrd, 521 U.S. 811 (1997) that was later significantly narrowed (Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015)) in a way that defeated the standing argument relied on by the panel.
According to the Committee, Raines only held that six individual Members of Congress lacked standing to challenge the constitutionality of a statute, and did not stand for the proposition that an institutional Congressional plaintiff lacks standing to vindicate its institutional rights.
Although the panel identified tools other than subpoenas by which the House could check the President (such as government shutdowns, arrests of Executive Branch officials, and impeachment), the Committee argued that these “tools” were impractical substitutes for simple subpoena enforcement and would only “invite further constitutional brinksmanship.”
The Committee also noted that the panel decision “permits the President to order defiance of the House’s subpoenas on an absolute immunity theory that draws no support from the Constitution and contravenes Supreme Court precedent.” To the Committee, this is a “question of exceptional importance,” and the panel decision “will severely impede Congressional investigations and oversight.” The Committee’s fear, as stated in its petition, is that if the panel decision stands, the rules of how the Executive Branch responds to subpoenas will fundamentally change, and the House will be deprived of information needed to exercise its broad constitutional oversight functions.
As stated above, on March 13, 2020, the United States Court of Appeals for the D.C. Circuit granted the petition for rehearing en banc, ordering initial briefs by the Committee by March 30, 2020.
Read the order: Committee on the Judiciary of the United States House of Representatives v. McGahn.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.