THE U.S. Court of Appeals for the District of Columbia Circuit ruled last week that it could not order former White House counsel Donald McGahn to appear before the House Judiciary Committee, though the committee issued a subpoena that Mr. McGahn flouted, on President Trump’s orders. If allowed to stand, the ruling would shred Congress’s ability to oversee the executive branch.
Courts have previously brokered informal compromises between Congress and the president on congressional subpoenas, avoiding definitive rulings that would settle the extent of lawmakers’ power to demand documents and testimony. Many judges still wish to avoid formal involvement. The D.C. Circuit’s two-judge majority warned that if courts refereed subpoena disputes between the executive branch and Congress, they would preclude the dealmaking and “flexible settlements” that typically resolve such problems.
But the era of give-and-take has ended. One party in the equation definitively broke faith: President Trump is now refusing to engage in any negotiations with Congress on providing information or witnesses. By refusing to act, courts are not preserving balance; they are ratifying its destruction, because the balance rested in large measure on the possibility that Congress could resort to the courts. “What would disrupt the present balance of power is not a holding that such lawsuits are permissible but the decision that they are not,” Judge Judith W. Rogers wrote in a dissent. “The judiciary can upset that careful equilibrium when it dismisses a suit that it ought to decide.” Continue reading.