House Can Sue to Force Testimony From McGahn, Appeals Court Rules

Still, Mr. McGahn, who has returned to private practice, is unlikely to testify before Congress in the near future. The court remanded other issues in the case to the three-judge panel, and the Justice Department said that it would continue to fight the subpoena in court.

The circuit court also ruled in a separate case on Friday, concerning the administration’s ability to divert funds appropriated by Congress to the border wall. The House had sued the administration, arguing that it usurped legislative powers by identifying more money than Congress had allocated. The decision in Mr. McGahn’s case established that the judiciary could intervene in this case as well, the court ruled.

The Justice Department said it also planned to fight the border wall suit.

“While we strongly disagree with the standing ruling in McGahn, the en banc court properly recognized that we have additional threshold grounds for dismissal of both cases, and we intend to vigorously press those arguments before the panels hearing those cases,” the department’s spokeswoman, Kerri Kupec, wrote in a statement.

In 2019, a lower court had ordered Mr. McGahn to comply with the subpoena and issued a scathing dismissal of the administration’s arguments. Judge Ketanji Brown Jackson of the United States District Court in Washington called them “fiction,” adding, “presidents are not kings.”

A three-judge panel from the court of appeals later reversed that decision, ruling that the judiciary could not intervene in the matter. The decision on Friday from the en banc court revived the lawsuit and found that the House Judiciary Committee had standing.

The decision fell along ideological lines. The judges in the majority were Democratic-appointees, and the dissenting judges were selected by Republican presidents. Those two judges, Judge Thomas B. Griffith and Judge Karen L. Henderson, were the majority on the panel that dismissed the lawsuit.

In his dissent on Friday, Judge Griffith warned that involving the courts in interbranch disputes could risk transforming the judiciary into a political referee. There is a “vanishingly slim” chance that Congress would benefit from the majority’s decision anytime soon, at the cost of the public trust in the judiciary, he said.

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