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Opinion | Donald McGahn’s testimony would be better late than never

The court found that “by virtue of the House’s long-recognized subpoena power, the Committee was entitled to McGahn’s testimony pursuant to its duly issued subpoena, which he has never challenged, and the specific information the Committee would learn therefrom in connection with carrying out its constitutional duties.” The decision continued, “By defying the subpoena, McGahn has deprived the Committee of that testimony and that deprivation is a concrete injury.”

The court reaffirmed what should have been obvious all along: “The power of each House of Congress to compel witnesses to appear before it to testify and to produce documentary evidence has a pedigree predating the Founding and has long been employed in Congress’s discharge of its primary constitutional responsibilities: legislating, conducting oversight of the federal government, and, when necessary, checking the President through the power of impeachment.”

The circuit court had the benefit of the Supreme Court’s decisions in Trump v. Mazars and Trump v. Vance, rejecting any “absolute immunity” to protect Trump’s financial documents from a subpoena. The same, the appeals court held, applies to live witnesses. The case was sent back to the district court to resolve other challenges.

Constitutional scholar Laurence Tribe tells me that “although the 7-to-2 win for the House is a limited and potentially short-lived victory vis-a-vis Trump and McGahn, who will keep litigating immunity and privilege claims till the cows come home, the en banc D.C. Circuit decision vindicated a vital set of congressional oversight powers and separation of powers principles that will matter as long as our constitutional republic stands.”

There are several important takeaways from the decision:

First, the House impeachment managers were correct to move forward before legal challenges about McGahn and others were resolved, as Republicans disingenuously suggested. We are now in August and, as Tribe reminds us, McGahn’s case will travel up and down the courts a few times before a “final” decision is reached.

Second, the ability of a chief executive to rob Congress of its oversight and impeachment powers merely by delay and litigation cries out for Congress to craft a new, quick resolution process in the case of congressional subpoenas, perhaps an emergency appeal directly to the D.C. Circuit if not the Supreme Court itself. In any list of post-Trump reforms, this should be near the top.

Finally, if the next Congress or a truth commission of some sort wants to investigate the numerous scandals involving myriad Trump underlings (for example, Attorney General William P. Barr or Commerce Secretary Wilbur Ross) or if there are criminal prosecutions that arise out of the Trump administration, documents and witnesses will be available. Indeed, the availability of witnesses and documents should heavily weigh in favor of post-Trump investigations.

Both at the Supreme Court and the D.C. Circuit, large majorities have upheld the role of Congress as a coequal branch of the government, one whose powers, if thwarted by the president, can be sustained in federal court. This is a win for separation of powers and constitutional democracy.

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