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1 1 (December 3, 2019)

handle is hein.crs/govbbxu0001 and id is 1 raw text is: %eroJ\ e Congressional Subpoenas of Presidential Advisers: The Impact of Committee on the Judiciary v. McGahn December 3, 2019 The House of Representatives obtained another judicial victory last week in the continued confrontation with the Trump Administration over the scope of Congress's investigative powers. In Comnhitee on the folirme k cGahn, the U.S. District Court for the District of Columbia (D.C. District Court) held that former White House Counsel Donald McGahn is legally required to appear before the House Judiciary Committee. Though the D.C. District Court's order has been temporarily stayed by the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit), the lower court ruling is significant in that it squarely rejects the Department of Justice's (DOJ) argument that presidential advisors like McGahn enjoy absolute immunity from compelled congressional testimony. Instead, if the district court's ruling goes into effect, McGahn must appear before the committee and invoke specifically applicable privileges where appropriate. The district court opinion joins other recent judicial decisions supporting congressional access to information, including a district court order granting the Judiciary Committee access to grand jury materials connected to the Mueller Report and multiple decisions, including tw\o at the appellate level rejecting the President's attempts (in his private capacity) to quash House committee subpoenas for his financial records. The House, however, has yet to receive the benefits of any of these decisions, all of which have been stayed in one fon or another as appeals proceed to higher courts. (This includes today's Second Circuit decision in Y Dmpi v D )eutsche Bank which, by its own terms, is stayed for seven days to allow for a petition to the Supreme Court for a possible extended stay.) Thus, the practical impact of McGahn and other cases on the House impeachment investigation is yet uncertain. The McGahn opinion is not the first from the D.C. District Court rebuffing DOJ's assertion that White House advisers cannot be compelled to provide testimony to a congressional committee. As discussed in greater detail in this previous Sidebar, the 2008 decision of Aiiers v Commiittee on the Jruliciarv rejected this same argument when raised by the George W. Bush Administration to prevent former White House Counsel Harriet Miers from appearing before the House Judiciary Committee as part of an investigation into the firing of U.S. Attorneys. In ruling that Miers was compelled to appear, the district court reasoned that the DOJ's asserted absolute immunity claim was entirely unsupported by existing case law. The VcGahn opinion took a similar tack, holding that the DOJ's immunity assertion with respect to McGahn Congressional Research Service https://crsreports.congress.gov LSB10373 CRS Legal Sidabar Prepared for Members and C o m m ri te es o f C o n g re ss. -------------------------------------------------------------------------------------------------------------------------------------------

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