Don't Forget Don McGahn

In these challenging legal times, with the Supreme Court ruling against president Trump in two 7-2 decisions involving the subpoenaing of Trump financial records, and with new stuff happening every day, it is possible that many have forgotten the pending matter of the House subpoena of Don McGahn, and the tortured path that subpoena has taken. The possible rehearing by the full DC Circuit Court of Appeals of the Michael Flynn appeal, together with the subpoena decisions by the Supreme Court yesterday, allows us to check in on the McGahn saga anew.

For those who have forgotten, the House subpoenaed McGahn to testify about his activities as White House Counsel. McGahn had testified for hours during the Mueller investigation, without any objection by the White House. However, when the House of Representatives issued a subpoena for McGahn's testimony, the White House objected, claiming "absolute immunity" for all administration officials, and instructed McGahn to refuse to appear in response to the subpoena.

The House sued in federal District Court, and the District Court, rejecting the assertion by the White House of "absolute immunity," held in favor of the House of Representatives, and ordered McGahn to honor the subpoena

The DoJ appealed the District Court ruling to the DC Circuit Court of Appeals. In a 2-1 decision, with two Republican-appointed Judges ruling in the majority, and one Democratic-appointed Judge dissenting, the DC Circuit held that it did not have jurisdiction to decide disputes between the Legislative branch and the Executive branch, and basically that the two branches of government could not seek judicial input to resolve the dispute. This decision came down from the Court of Appeals on February 28, 2020.

And now it gets interesting.

The House of Representatives immediately sought a rehearing of the DC Circuit panel decision by the full Court of Appeals, just like Judge Sullivan did when the same Court of Appeals ruled that he had no choice and had to dismiss Flynn's case. Remember that there were then, and are now, 11 active judges on the DC Circuit Court of Appeals who are eligible to hear a Petition for Rehearing En Banc upon application by an aggrieved party, and that an actual majority has to agree to hear the case en banc. In the McGahn case, the DC Circuit Court of Appeals granted the petition of the House of Representatives for Rehearing En Banc on March 13, 2020. Oral argument on the Petition for Rehearing took place on April 28, 2020, and a decision is pending.

Enter the Supreme Court. In two 7-2 decisions yesterday, the Supreme Court rejected the claims of "absolute immunity" presented by the president, and further held that there is a role for the Judiciary in resolving disputes over subpoenas issued by the Legislative branch. It remanded the case involving subpoenas issued by the House of Representatives to the District Court to determine whether the subpoenas fell within proper guidelines, but made it absolutely clear that resolving disputes between the Legislature and the Executive over the scope and propriety of subpoenas is a judicial function.

So now, with the rulings of the Supreme Court in hand, the full DC Circuit Court of Appeals has the opportunity to rule on the McGahn case after the three judge panel held that the judiciary did not have standing to resolve these type of disputes. All as we await a decision by the full court as to whether it will hear the Flynn matter en banc. It would not be unrealistic to assume that the McGahn decision will issue by the end of this month.

Oh, and in case you all forgot, of the eleven Judges of the DC Circuit who are hearing the McGahn matter, and may hear the Flynn matter, seven were appointed by Democratic Presidents, while only four were appointed by Republican Presidents.

Fasten your seatbelts, ladies and gentlemen, the ride may get a little bumpy!
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