- Click to share on Facebook (Opens in a new window)
- Click to share on Twitter (Opens in a new window)
- Click to share on LinkedIn (Opens in a new window)
- Click to email a friend (Opens in a new window)
Editor's Note: Elie Honing is a former state and federal prosecutor. He is a legal analyst for CNN. The opinions expressed in this comment are the author's own. See more at CNNe.com/opinion.
(CNN) - When the US Court of Appeals for the District of Columbia deals Tuesday with the legal dispute over the summons to White House former lawyer Don McGahn to testify before the US Congress, the case will hardly be over McGahn.
It is something much more important.
The case will determine whether Congress can hold the President and Executive Power significantly accountable for issues far more important than McGahn's testimony, including the Trump administration's handling (or possible mismanagement) of the coronavirus crisis.
First, a review. Shortly after the publication of Special Prosecutor Robert Mueller's report in April 2019, the House Judiciary Commission issued a subpoena for McGahn's testimony. According to the Mueller report, McGahn witnessed several potentially obstructive acts of conduct by President Donald Trump. But the White House ordered McGahn not to comply with the subpoena, wielding a new "absolute immunity" legal clause under which all Executive Branch employees were free to ignore any subpoena from Congress, for whatever reason.
- 10 key conclusions from Robert Mueller's testimony before the Chamber
After a delay of almost four months, the House Judiciary Commission brought the case to court. A federal district judge firmly joined the House of Representatives and ordered McGahn to testify and rejected the administration's "absolute immunity" argument as "fiction" that makes the law "exactly the other way around." "Presidents are not kings," the judge wrote memorably.
The administration appealed, and a panel of three judges issued an impressive ruling (by a two-to-one vote) reversing the district court's decision and leaving McGahn out of danger. The Court of Appeals found that "we have no authority to resolve" the case, which is "not fit for judicial resolution."
But there are now indications that the Court of Appeals could be reversed, granting a review in which nine judges will re-judge the case (seven of the nine have been appointed by Democrats; the other two, appointed by Trump, have recused themselves and will not participate). Courts seldom grant a banc review - with full court members present - and the fact that the court has done so here may suggest a concern with the panel's original decision.
At the same time, the Supreme Court appears to be considering a similar issue. While lower federal courts have consistently held that House of Representatives subpoenas requesting Trump tax returns from private banks are valid, the Supreme Court has now asked parties to report whether they have legal authority to pronounce on citations. If the court rules that it does not have such authority, then, like the original Court of Appeals ruling in the McGahn case, it will effectively allow the Executive Branch to challenge any subpoena from Congress while the courts sit idly by.
This is what is at stake: the ability of Congress to exercise significant oversight over the President, the White House, and the Executive Branch. If the original Court of Appeals ruling on McGahn - that courts cannot engage in a subpoena dispute between courts - is upheld, then, as a practical matter, the Executive Branch is simply free to ignore any subpoena from Congress, in any topic, without legal implication or consequence.
- Nancy Pelosi says that Donald Trump is "involved in a cover-up"; This is how Trump replied
The possible consequences are dizzying. For example, when Congress investigates the White House response to the coronavirus crisis, Congress will surely seek delivery of internal memos and emails for the testimony of key people. But if the White House is free to ignore those subpoenas, knowing that the courts will refuse to intervene, then we may never get answers to the most important questions: who knew what about the coronavirus threat, and when, and what actions were taken or failed to be taken? And these questions must be answered to ensure accountability for past actions and to better equip us to respond to the next crisis.
McGahn's testimony is now a late limitation, if it ever happens. More importantly, the case that bears his name will fundamentally upset our constitutional balance of powers. If the courts continue to evade liability, the White House may never have to fully respond to Congress and the American public for their actions (or inaction) in the coronavirus crisis, or any other issue in this regard.
- Trump attacks the facts to survive the impeachment against him
Now, questions from readers
Angelo (Illinois): Will Trump's immigration decree survive if challenged in federal court?
The New York Attorney General has declared that he is "ready to take legal action" against the presidential decree that temporarily prohibits the allocation of permanent residence to some people outside the US, with several exceptions (spouses and children of citizens and workers doctors, for example).
As a general matter, the President has broad authority over immigration policy and compliance matters. Federal courts often differ from the president's political decisions and do not challenge those judgments.
In the closest recent precedent, the United States Supreme Court in 2018 upheld Trump's revised “travel ban,” a decree limiting the rights of nationals of certain countries to enter and obtain legal status in the United States. The Tribunal subjected the decree to a “rational basis” review, not on the basis of whether the President's policy was wise or optimal, but rather whether it was “plausibly related to the Government's stated objective of protecting the country and improving the investigation processes ”.
Using that reference standard, the Court upheld the decree by a margin of five to four. Since that decision, only one seat in Court has changed: Judge Anthony Kennedy, who voted to uphold the travel ban, has been replaced by Judge Brett Kavanaugh, a conservative who appears to be on the side of the President. It's hard to predict what lower federal courts could do, but ultimately, if the case gets to the Supreme Court, it investigates whether the Court upholds Trump's decree.
Brad (Michigan): If people disobey stay-at-home or quarantine orders, does the government really have the legal power to enforce them?
Yes. All 50 states have laws that empower governors or other officials to impose quarantine orders, including confinement orders or other restrictions, in times of emergency. Violation of those laws is punishable by fines and, in approximately half of the states, with possible arrest and criminal prosecution, generally for low-level misdemeanors (although such violations can be prosecuted as serious crimes in New Hampshire, South Carolina and Texas).
The application of quarantine laws has varied from state to state. In New Jersey, for example, authorities have issued more than 1,700 citations for violations of confinement orders. But across the Delaware River in Pennsylvania, authorities issued only "a handful" of quotes, enforcing an order to stay home primarily with warnings.
The bottom line: quarantine and home stay orders are supported by law, and violations could have significant consequences.
*************************************
Three themes to follow in the coming days
1. What signals has the Court of Appeal sent about your intentions in the discussion of the McGahn case?
2. How will the courts respond to the legal challenge of Trump's immigration decree?
3. Will the Department of Justice take legal action to demand the reopening of religious institutions, such as churches, as the office of Attorney General William Barr has already done in the case of a Mississippi church offering drive-in services?
