DC Circuit Throws Out McGahn Ruling on House’s Lack of Standing, Grants En Banc Rehearing


DC Circuit Throws Out McGahn Ruling on House’s Lack of Standing, Grants En Banc Rehearing



Former White House counsel Donald McGahn. Photo: Diego M. Radzinschi/ALM.

The U.S. Court of Appeals for the D.C. Circuit has granted an en banc rehearing of the House’s lawsuit seeking testimony from former White House counsel Don McGahn, as well as a rehearing of a separate House lawsuit over border wall funding.
House lawyers last week filed for a rehearing of their lawsuit about McGahn, after a three-judge panel ruled 2-1 that the House Judiciary Committee did not have standing in the case. Friday’s order vacates that initial ruling, the effects of which were already being felt in other House subpoena lawsuits against the Trump administration.
The order also said the three-judge panel in the House’s lawsuit challenging the Trump administration’s diversion of military funds toward border wall construction had sought an en banc rehearing “in light of the common issue of Article III standing presented in that case and McGahn.”
The panel heard arguments in the border wall case in February, and had not yet handed down a ruling. U.S. District Judge Trevor McFadden of the District of Columbia dismissed the lawsuit last year, after he found the House did not have standing in the case.
A majority of eligible judges voted in favor of rehearing both cases, according to the order. Judges Neomi Rao and Gregory Katsas did not participate in the court’s deliberations.
The order set an April 28 hearing for both cases.
The D.C. Circuit was widely expected to grant an en banc rehearing in the McGahn case. Judge Thomas Griffith wrote in the majority opinion on McGahn’s testimony that the House could not go to court over the “interbranch information dispute.”
“Interbranch disputes are deeply political and often quite partisan,” Griffith wrote. “If we throw ourselves into ‘a power contest nearly at the height of its political tension,’ we risk seeming less like neutral magistrates and more like pawns on politicians’ chess boards.”
House lawyers, in their petition for a rehearing filed last week, said that if the decision were allowed to stand, it could do lasting damage to Congress’s oversight authorities and force them to take desperate actions like arresting recalcitrant witnesses.
“The panel decision conflicts with D.C. Circuit precedent, prevents the House from carrying out its function as a check on the power of the Executive, and undermines Congress’s authority to fulfill its Article I responsibilities,” the lawyers argued. “Present circumstances—in which the President has announced broadscale defiance of Congress’s oversight power—underscore how dramatically this ruling could upset the constitutional balance of powers.”

MMW

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