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Appeals court rules House has authority to enforce McGahn subpoena

Don McGahn must appear before Congress
Don McGahn must appear before Congress 01:48

House Democrats can sue in order to force former White House counsel Don McGahn to comply with a congressional subpoena, according to a ruling by a federal appeals court Friday.

The U.S. Court of Appeals for the D.C. Circuit, in a 7-2 decision, ruled the House reserves the right to force White House officials to testify. The court rejected the Justice Department's separation of powers argument that the executive branch must be protected from the power of the congressional branch. It determined that the committee has the standing "to seek enforcement in federal court of its duly issued subpoena in the performance of constitutional responsibilities." 

"Preserving the power of a House of Congress to ensure compliance with its subpoena ... enables it to carry out its constitutional responsibilities, which include serving as an essential check on the president and executive branch," the majority opinion by Judge Judith Rogers stated.

The court left open the possibility that McGahn could assert executive privilege in responding to some of Congress' questions.

The full en banc court's ruling was a partial one, and it remanded McGahn's other claims to the three-judge panel for consideration.

Democrats initially subpoenaed McGahn in light of his role in special counsel Robert Mueller's Russia investigation, which examined whether Mr. Trump had obstructed justice by attempting to halt the investigation into Russian interference in the 2016 election. 

Friday's ruling is the latest development in the ongoing battle between House Democrats and the White House for information and testimony related to the president's conduct in office. House Judiciary Chairman Jerry Nadler welcomed the decision.

"The court rejected President Trump's sweeping claim that committees of the House have no standing before the courts to seek redress of the institutional injury caused when lawfully issued subpoenas are ignored," House Judiciary Chairman Nadler said in a statement. "Today's decision confirms the Judiciary's ability to resolve these disputes.

"We look forward to the favorable resolution of the remaining issues before the DC Circuit in short order," Nadler continued, adding, "[T]oday's decision strikes a blow against the wall of impunity that President Trump has tried to build for himself. And it reaffirms the core principle behind the Supreme Court's rulings last month:  No one—not even the president—is above the law."

Justice Department spokesperson Kerri Kupec said in a statement that the department "strongly" disagrees with the partial ruling, but noted that the parts of the case remained to be argued before the appeals panel, saying, "we intend to vigorously press those arguments."

McGahn left the White House in December 2018 and was replaced by current White House counsel Pat Cipollone. 

Clare Hymes contributed to this report.

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