by Josh Gerstein
The full bench of the powerful D.C. Circuit Court of Appeals agreed to weigh in on two legal fights critical to President Donald Trump: whether the House can use the courts to enforce a subpoena for testimony from former White House counsel Don McGahn, and whether the House can sue to block Trump's effort to fund border wall construction over Congressional objections.
The Friday afternoon announcement wiped out a major victory Trump scored last month when a smaller panel of the same court ruled, 2-1, that the courts should not wade into subpoena fights between Congress and the White House.
The appeals court said it will hear arguments, en banc, April 28 in both the McGahn and border wall disputes. There seems to be little chance that the Supreme Court will resolve the issues definitively before the November election, but rulings in the House's favor could lead the justices to intervene with a stay in the coming months.
Prospects for Trump prevailing in the cases at the D.C. Circuit look grim. While the active bench of that court leans toward Democratic appointees by a 7-4 margin, the order Friday indicated that both of Trump's nominees--Judges Gregory Katsas and Neomi Rao--have recused themselves from both cases.
As a result, the en banc court for McGahn will have only two Republican appointees. One additional GOP appointee, Judge David Sentelle, will join the en banc court considering the border wall funding dispute, the order said.
The renewed debate at the D.C. Circuit over critical separation-of-powers issues is set to play out about a month after the Supreme Court is scheduled to hear arguments on a trio of cases involving demands for access to Trump's personal financial records.
Two of those cases involve subpoenas from House committees. The third was triggered by a subpoena that a local grand jury in New York City issued for Trump's tax and business records. A decision from the Supreme Court in those cases is expected by the end of June.
The majority opinion the D.C. Circuit issued last month in the McGahn case said the courts should butt out of subpoena fights between Congress and the executive branch because intervening would effectively shut down the usual process of negotiation between the branches and instead send both sides running to court.
Judge Thomas Griffith, an appointee of President George W. Bush, also said blessing the subpoena was likely to trigger endless eddies of litigation over individual questions lawmakers wanted to ask McGahn in connection with their investigation into alleged efforts by Trump to obstruct Special Counsel Robert Mueller's investigation into contacts between the Trump campaign and Russia.
However, House lawyers pleaded with the full D.C. Circuit to rehear the case, arguing that bowing out of such fights actually amounts to siding with the White House, since it typically has considerable leverage over testimony and records lawmakers want.
House Counsel Douglas Letter also warned that trying to foreclose subpoena litigation could lead to more unpleasant conflicts, like efforts by the House to arrest uncooperative witnesses.
The Justice Department contended that McGahn, as a close presidential adviser, was absolutely immune from subpoena. Griffith didn't endorse that position. Judge Karen Henderson, who was on the panel and will be the only other GOP appointee on the en banc court, rejected the absolute immunity argument, but concurred with Griffith that courts shouldn't referee such fights.
The only dissenter last month was Judge Judith Rogers, an appointee of President Bill Clinton. She said the court was gutting the House's impeachment powers by refusing to enforce the subpoena.
The other appeal stems from the House's unsuccessful effort to challenge the plan Trump' announced in 2019 to use over $6 billion from military construction and counterdrug budgets to fund border wall construction even though Congress appropriated only $1.375 billion for barrier projects and put strict limits on that money.
The move, backed in part by a presidential emergency declaration, spurred a flurry of lawsuits from environmental and human rights groups, states, border residents, and the House itself. All said Trump's actions violated the power of the purse granted to Congress by the Constitution.
The House's lawsuit, filed in Washington, found no traction. Last June, U.S. District Court Judge Trevor McFadden tossed it out, finding that Congress had no standing to sue Trump administration officials over allegedly unauthorized spending.
The House appealed that ruling, setting in motion arguments that took place before a three-judge D.C. Circuit panel last month and now scheduled to be reprised before the larger, 10-judge court in April.
No decision was rendered by the three-judge panel before Friday's order taking the border wall case en banc. The order said the issue of the House's standing is "common" to that case and the dispute over McGahn's testimony.
Other suits aimed at blocking Trump's unusual border wall funding plan found greater purchase in the federal courts. Groups suing in California managed to get an injunction against construction, as did by El Paso County and the Border Network for Human Rights in a suit brought in Texas.
However, those victories proved to be short lived, as the Supreme Court blocked the injunction out of California and the 5th Circuit Court of Appeals stayed the one in Texas.
A Justice Department spokeswoman declined to comment.
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