The DC Circuit Court of Appeals, weighing the House’s lawsuit over its unfulfilled April 2019 subpoena of former White House counsel Don McGahn, sided with the Trump administration and McGahn on Monday. A split court determined that Congress hasn’t given the House legal power to allow it to go to court for help enforcing subpoenas.
But on close read, the McGahn ruling may have even more severe political consequences by giving Trump officials no incentive to comply with House subpoenas if they don’t want to, and where the specter of a long-dormant jail in the US Capitol becomes the House’s only immediate hope.
The effect may not just hurt the House Judiciary Committee’s years-long effort to question McGahn about Trump’s directives to hinder the Russia investigation. The ruling also could chill investigations of an array of Trump administration scandals, from a State Department inquiry, to the Postal Service, to the Census. In the Census situation, the House is still in court after holding Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt for refusing to turn over documents. Hours after Monday’s McGahn decision, the Trump administration sent it to the judge in the Census subpoena case.
“I’m very very sorry to say that it looks like the House doesn’t have much of a hand to play at this time,” said Thomas Spulak, a former House general counsel.
When asked how much the McGahn ruling effects, CNN legal analyst Steve Vladeck answered, “A lot.”
“At the moment there is no mechanism for Congress to act in the courts to force that person to comply,” he said.
The House of Representatives appears to have few if any viable options to immediately help its investigations following the decision. Democratic leaders said they will appeal the ruling. But that process could take weeks if not months, and the McGahn subpoena is set to expire when the Congress ends in January.
As far as making a witness turn over documents or show up for testimony, there aren’t viable enforcement choices if a person resists. The House could hold the recalcitrant witness in criminal contempt and ask the US Attorney’s Office to prosecute. But that option is a non-starter when the witness works for a President who’s supportive of ignoring subpoenas — and under the same branch of government as the Justice Department prosecutors.
The DC Circuit on Monday suggested another remedy, that the House could pass a law giving it the ability to sue over a subpoena. Democrats have proposed at least one bill like this in the current Congress. But its passage is a long shot, if that. A Republican-held Senate would need to be on board with Democrats’ investigations, and the President would have to sign the House power into law.
The Senate wouldn’t be the same dead-end with subpoenas, the appeals court noted, because Congress passed a law in post-Watergate reforms to allow it to use the courts for subpoena enforcement.
That leaves one more avenue for the House to enforce its subpoenas. And it’s a drastic, unlikely one: send the sergeant-of-arms to arrest the non-compliant McGahn.
McGahn’s attorney didn’t respond to requests for comment. But House lawyers previously have admitted arresting current or former officials whom it held in inherent contempt of Congress wasn’t realistic. (The most famous previous Capitol Hill-jail-scenario came 100 years ago, in the Senate’s investigation of the Teapot Dome Scandal, when the sergeant-at-arms arrested the attorney general’s brother in Ohio and a case over the arrest went to the US Supreme Court.)
Congress keeping a detainee has long been a punchline to questions about the House’s subpoenas enforcement abilities.
Stanley Brand, another former House general counsel, called the enforcement option for the House “a pop gun.” With the House now considering holding others in contempt, like Secretary of State Mike Pompeo, “What’s that going to do?” Brand said.
“If Congress has the ability to issue subpoenas, what good is that if it can’t enforce that? it really upsets the balance between the branches. Which is not a good thing,” Spulak said.
House Speaker Nancy Pelosi had a similar warning in a statement she issued Monday afternoon. The Circuit Court’s ruling in McGahn, if it stands, she said, “threatens to strike a grave blow to one of the most fundamental Constitutional roles of the Congress.”
The Democratic House investigative committee chairs announced they plan to ask the full DC Circuit to strike the ruling and rehear the case.
They did not, however, describe what other ways they might enforce the subpoena.