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1 1 (March 25, 2020)

handle is hein.crs/govcayp0001 and id is 1 raw text is: ~* or 101 ' Researh Servi kM- Resolving Subpoena Disputes Between the Branches: Potential Impacts of Restricting the Judicial Role March 25, 2020 An en banc panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) is set to consider what could turn out to be one of the circuit's more consequential decisions on congressional power. In Committee on the Judiciary v. McGahn, the question before the court is whether the House can invoke the authority of the courts to compel former White House counsel Don McGahn to comply with a House Judiciary Committee subpoena for his testimony. In February, a three-judge panel of the D.C. Circuit determined that the House could not, holding that because the House lacked standing, the court lacked authority to hear the dispute (the reasoning behind that decision is explored in a companion Sidebar). The Judiciary Committee quickly filed its petition for rehearing before an en banc panel of the D.C. Circuit, which was granted last week. The order granting rehearing also vacated the February three- judge panel decision and set oral arguments in the case for April 28, 2020. The vacated panel opinion would have considerably restricted, and possibly foreclosed, litigation as an option for resolving congressional information access disputes with the executive branch. Had that decision stood, it would have largely removed one of Congress's primary methods of enforcing subpoenas issued to executive branch officials. The impact-especially long-term-such a restriction would have on Congress is difficult to discern, but if the en banc D.C. Circuit were to agree with the three-judge panel and hold that Congress must rely exclusively on its own powers-rather than the courts'-to enforce its investigative demands, that ruling may affect not only how Congress investigates, but also how it legislates. Committee on the Judiciary v. McGahn The McGahn case arose from a dispute over Congress's authority to obtain testimony from presidential advisers. The executive branch asserts that McGahn and other close presidential advisers possess absolute testimonial immunity and cannot be compelled to appear before a congressional committee. Presidential administrations have asserted that position since at least 1971, but the U.S. District Court for the District of Colombia rejected that argument in 2008 in Committee on the Judicia'y v Miers. In 2019, after President Trump directed McGahn not to comply with a Judiciary Committee subpoena for his Congressional Research Service https://crsreports.congress.gov LSB10432 CRS Lega Sidebar Prepaed for Membeivs and Cornm ittees o4 Cor~qress ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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