The Republic died today. Or maybe yesterday, I can’t be sure[i]. I had thought that the U.S. was going to be able to survive the reign of Donald Trump. Now, I wonder.
What changed my mind was the decision of the D.C. Circuit Court of Appeals in the case of the House Committee on the Judiciary v. Donald F. McGahn, II (House v. McGahn or McGahn). The facts of the case are straightforward.
McGahn, a former White House counsel, was ordered by Trump not to testify before the House Judiciary Committee on the matter of Russia’s interference into the 2016 presidential election and the Special Counsel’s findings of fact concerning potential obstruction of justice by the President. (emphasis added)
The Committee, after months of negotiations, subpoenaed McGahn, who continued his refusal. The Judiciary Committee petitioned the U.S. District Court of D.C. to compel McGahn’s appearance.
The administration argued in court that a duly authorized committee of Congress acting on behalf of the House of Representatives could not invoke judicial process to compel the appearance of senior-level aides of the President to receive sworn testimony.
The administration further maintained that a federal court cannot exercise subject-matter jurisdiction over any such subpoena-related stalemate between the Legislature and the Executive branch, on separation of powers grounds. (emphasis added)
Judge Jackson dismissed both of the administration’s claims writing that [H]owever busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires. (emphasis added)
The administration’s claim that a president can grant absolute testimonial immunity to executive branch personnel based solely on the separation-of-powers was found by Judge Jackson to lack both a constitutional and a legal basis[i]. More to the point, her honor declared that if the past 250 years of recorded American history has proven anything, it is that Presidents are not kings. (Emphasis added)
It is important to note that Judge Jackson’s decision was about the right to call McGahn for testimony. Whether or not the Judiciary Committee could compel testimony on any given issue was another matter.
Judge Jackson recognized that some information could justifiably be withheld from Congressional oversight based on executive privilege. What could not be justified was the blanket premise that the nation’s chief executive had the power to suspend the Constitution.
On February 28, 2020, the D.C. federal appeals court thought differently. It was at that moment I first feared for the life of the Republic.
Two of the three appellate judges ruled that the Committee lacked standing to sue based on a traditional understanding of what constitutes a legitimate case or controversy under Article III of the U.S. Constitution, as well as their interpretation of the document’s separation of powers clause.
In plain English, it was the majority opinion of the appellate court that they—and the trial court judge—had no business even hearing the case. The majority reasoned that the Committee and the Congress had other ways to compel McGahn to show up to testify. For example, Congress could refuse to act on a presidential nomination or withhold appropriations.
A plaintiff’s right to seek judicial involvement, i.e., standing, is the first issue any court must resolve. The test of standing is whether the plaintiff has experienced an actual redressable harm traced to a defendant’s actions. Redressability means there’s something a court can realistically do to make the injured party whole or, at least, better, e.g., cash compensation or an order to cease a harmful activity, etc. All the criteria must be met before a court will accept a case for adjudication.
The standing question has recently been front and center in Juliana v. U.S., in which 21 young plaintiffs are asking a federal court to declare a habitable environment a constitutionally protected right. The Ninth District Court of Appeals has to date refused to hear the case–declaring it a political question outside a court’s ability to redress the harm being done to the plaintiffs by the federal government’s enabling of the fossil fuel industry.
The appellate court in McGahn stated that standing applies only to individuals—not to a committee of the Congress. Judge Rogers wrote in her dissenting opinion:
Exercising jurisdiction over the Committee’s case is not an instance of judicial encroachment on the prerogatives of another Branch…subpoena enforcement is a traditional and commonplace function of the federal courts.
The court removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties. (emphasis added)
Congressional oversight of the executive branch has long been an implied part of legislative power under Article I of the Constitution. Congress not only has the power to raise and authorize the spending of revenues and is obligated to see them spent correctly. How can Congress perform its oversight role without the ability to acquire information from the responsible executive agencies?
Subpoenaing information from the executive branch is a routine judicial practice—even in cases of impeachment in which a possible high crime or misdemeanor was involved. President Nixon’s claim of executive privilege was not permitted to stand. Why should Trump’s be different?
Trump’s threat to the nation is an unfettered willingness to put himself and his administration above the law. If allowed to stand, the majority’s opinion in McGahn precludes any reasonable opportunity for a committee of Congress to obtain the information needed to identify—let alone to act—on a presidential abuse of power.
The harmed parties here are We the People! Congressional committees are acting on our behalf when they call for the information needed to fulfill their Constitutional oversight role. In her dissent, Judge Rogers opined that Congress and the White House had found ways to negotiate their informational disputes since 1970. The pattern has ended with the current administration.
Trump’s narcissism and lack of understanding of what has kept America great for over 240 years is possibly an even greater threat to the nation than climate change. In his three years in office, Trump and his administration have been sued hundreds of times—more than any other administration in history.
Many of these suits have as their basis the wanton disregard of established administrative procedures or simple sloppiness. Nowhere has the administration’s contempt of the law been more apparent than in the preparation of impact statements required to accompany proposed rollbacks of environmental protections.
The claim of the appellate panel that the Judiciary Committee has other options to force McGahn to testify is unreasonable. The Judiciary Committee does not have jurisdiction over executive agency budgets. Moreover, confirmation of nominations is not within the House’s jurisdiction—it is a matter for the Senate.
The reversal of the trial court’s decision in McGahn is a license for Trump to expand the powers of the presidency in ways the authors of the Constitution feared. Because presidents are not kings, the House of Representatives has been given the power to impeach and the Senate to try them for high crimes and misdemeanors while in office.
We’re seeing since his acquittal what happens when Trump believes himself above the law. He finds sycophants to appoint on a temporary basis. When they stop serving his needs, he fires them. Arrogance has brought down empires, and much like the coronavirus, the U.S. is not immune from a leader’s hubristic disease.
The strength of our nation is based upon the principle of checks and balance for the branches of government. When a court precludes the ability of the legislature at least to obtain needed information, it defeats its ability to discover and check executive transgressions.
Without checks, there is no balance. Without balance, citizens begin to lose trust in their leaders and governing institutions. Without trust, there is no nation.
What then is the greatest existential threat to America? You be the judge.
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[i] My apologies to Camus
[ii] Judge Jackson gave particular weight to COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Appellee v. Harriet MIERS and Joshua B. Bolten The district court in the case declared that Ms. Miers was legally required to appear and testify in response to the Committee’s subpoena, although she could invoke executive privilege in response to specific questions.
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