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Editorial: Congress is on its own in trying to hold Trump accountable

Donald McGahn
Former White House Counsel Donald McGahn was subpoenaed by the House Judiciary Committee.
(Jim Watson / AFP/Getty Images)

During President Trump’s Senate impeachment trial, his lawyers argued that if Congress really wanted to obtain documents and witnesses that the president and his lawyers argued should be privileged, then Congress should have gone to court to contest the claim.

But that argument was disingenuous. Because in a case in which the House actually did go to court to enforce a subpoena, the administration argued that the dispute was none of the judiciary’s business — and last week a federal appeals court ominously agreed.

By a 2-1- vote, a panel of the U.S. Court of Appeals for the District of Columbia said it would not enforce a subpoena the House Judiciary Committee issued last year for former White House Counsel Donald McGahn. Unless reversed on appeal, this shortsighted decision could hobble efforts by Congress to hold the executive branch accountable — not just today but even long after Trump leaves office.

The House Judiciary Committee had subpoenaed testimony from McGahn as part of its inquiry into possible obstruction by Trump of special counsel Robert S. Mueller III’s investigation into collusion with Russia. According to Mueller’s report, McGahn said Trump had ordered him to have Mueller removed. When Congress subpoenaed McGahn, though, the White House responded by asserting that he, like certain other presidential aides, was “absolutely immune from compelled congressional testimony.”

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The House challenged that response in court, and last November U.S. District Judge Ketanji Brown Jackson ruled that the absolute testimonial immunity asserted by the administration to keep McGahn from testifying “simply does not exist.”

But the District of Columbia Circuit panel ruled differently on Friday, saying that the courts couldn’t even get involved in the dispute between Congress and the White House. Writing for the court, Judge Thomas Griffith said that the House lacked standing to bring its lawsuit to compel McGahn’s compliance because no individual’s interests were at stake and the committee was asking the court to “settle a dispute that we have no authority to resolve.”

Griffith suggested that rather than seek intervention by the courts, Congress could hold officials in contempt, withhold appropriations, refuse to confirm presidential nominees or “impeach recalcitrant officers.”

In a dissenting opinion, Judge Judith Rogers offered a more realistic prediction about the effect of the majority’s abdication. She wrote: “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.”

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As Trump’s acquittal demonstrates, even impeachment isn’t a sure way for Congress to obtain the information it needs. If this decision stands, not only he but also his successors will be emboldened to defy legitimate efforts by Congress to hold them accountable.


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