White House Wins Don McGahn Appeal, Destroying Democrats’ Impeachment Argument

WASHINGTON, DC - SEPTEMBER 27: White House Counsel and Assistant to the President for U.S. President Donald Trump, Donald McGahn, listens as Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill on September 27, 2018 in Washington, DC. Kavanaugh was called back to testify about …
Saul Loeb - Pool/Getty Images

The White House won its appeal Friday against a lower court ruling that would have allowed the Democrat-run the U.S. House of Representatives to compel the testimony of former White House counsel Don McGahn.

The decision marks a major legal victory for the Trump administration, and destroys one of the main arguments used by House Democrats in their attempt to impeach and remove the president for “obstruction of Congress.”

The U.S. Court of Appeals for the District of Columbia Circuit ruled in the president’s favor 2-1, and also “told the judge presiding over the case [in the district court] to dismiss it outright,” Politico notes.

The opinion, written by Judge Thomas Griffith (who was appointed by President George W. Bush), declared that the courts lacked jurisdiction to decide the dispute: “The Committee’s suit asks us to settle a dispute that we have no authority to resolve.” The opinion went on to say that if compelled to testify, the White House would simply invoke executive privilege, leading to further litigation.

The judge added that Congress had other tools at its disposal to compel members of the administration to testify:

The absence of a judicial remedy doesn’t render Congress powerless. Instead, the Constitution gives Congress a series of political tools to bring the Executive Branch to heel. … Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees, harness public opinion, delay or derail the President’s legislative agenda, or impeach recalcitrant officers. … Adjudicating these disputes would displace this flexible system of these political weapons without dragging judges into the fray.

The White House had argued that allowing the House to force McGahn to testify at the House Judiciary Committee would deprive the president of his right to counsel, infringe upon the separation of powers, and make it more difficult for the executive branch to function.

House impeachment managers had ridiculed the White House’s argument, saying it had never been upheld in court. The president’s lawyers fired back, noting that there were only two relevant cases, and that they believed they were likely to win the McGahn case on appeal.

The White House lawyers — pending a likely appeal to the Supreme Court — were right.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.


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