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Appeals court rules it can't enforce congressional subpoena of former White House counsel

A federal appeals court panel ruled Monday that it does not have the power to enforce congressional subpoenas, delivering a victory to former White House counsel Don McGahn, who has resisted attempts by the House Judiciary Committee to compel his testimony.

In a 2-1 decision, District of Columbia Circuit Judge Thomas Griffith, writing for the majority, ordered the dismissal of the House committee's lawsuit against McGahn because Congress has not passed legislation that permits federal courts to force defiant congressional witnesses to testify.

"The Constitution leaves to Congress—and not to the federal courts—the authority to craft rights and remedies in our constitutional democracy," Monday's opinion reads, explaining that Congress has yet to codify a legal avenue for federal courts to settle these disputes.

House Democrats say they want to question the former White House counsel under oath about accusations that President Trump obstructed justice and attempted to thwart special counsel Robert Mueller's investigation into Russian election meddling. The House Judiciary Committee subpoenaed McGahn in 2019 as part of its impeachment inquiry into Mr. Trump and the lawsuit considered in Monday's ruling came after McGahn and his lawyers from the Justice Department refused to cooperate.

Monday's decision to dismiss the lawsuit denies the court a role in working through disputes over congressional subpoenas, a decision that will likely affect future subpoenas by House committees.   

Nevertheless, the court's majority advises that its decision does not completely rule out the possibility that courts may one day be able to compel witnesses to testify before Congress, but it requires passing a law granting courts that power.

"We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit," the opinion reads.

Monday's ruling is distinct from one made by the entire D.C. appeals court earlier this month in which the judges ruled 7-2 that the House Judiciary Committee had the standing to bring the lawsuit against McGahn in the first place. "Even though the Committee has the...standing necessary to 'get[] [it] through the courthouse door, [that] does not keep [it] there'," Judge Griffith explains.

The court has yet to decide whether White House officials like McGahn are immune from testifying before Congress about their time serving a president, another key pillar of McGahn's defiance of House Democrats' subpoena.

The House Judiciary Committee can now request another hearing before the entire circuit of the D.C. appeals court, which would first have to grant the request before rehearing the case.

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