On August 7, the US Court of Appeals for the DC Circuit held, 7-2, that the House can sue to compel testimony from an executive branch official.
At issue was the case of former White House counsel Don McGahn, who was a central witness in special counsel Robert Mueller’s investigation of Russian interference in the 2016 election. Efforts to secure McGahn’s testimony have been tied up in legal proceedings for a year.
The victory sets a major precedent for the House’s right to seek relief in court. The panel agreed with the firm that the House has standing to seek judicial relief if necessary to compel executive testimony and that the balance of power among the branches is furthered -- not undermined --by giving the House judicial recourse if the executive does not comply with a subpoena.
The “effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary,” Judge Judith Rogers wrote for the majority.
The judge also wrote: “To level the grave accusation that a President may have committed ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the House must be appropriately informed. And it cannot fully inform itself without the power to compel the testimony of those who possess relevant or necessary information.”
Jenner & Block was retained after a DC Circuit panel ruled against the House and the case went en banc. The team was led by Partner Matthew S. Hellman and included Associate Elizabeth B. Deutsch and Law Clerk Rachel Wilf-Townsend.