WASHINGTON (CN) — In a pair of legal battles that could upend the balance of power in Washington, House Democrats on Tuesday urged the majority liberal D.C. Circuit to intervene in interbranch disputes with the Trump White House.
The Justice Department first warned the court that it “will be revolutionized” if the nine-judge panel rules in favor of the House. With equal foreboding, Democrats said siding with the Trump administration would initiate “enormous change” in congressional oversight.
The D.C. Circuit held the en banc hearing by teleconference in line with Covid-19 protocols. The court opted to hear the House lawsuits against the Trump administration in conjunction, based on underlying separation-of-power arguments in the two cases.
The interbranch lawsuits center on the House subpoena to former White House counsel Don McGahn and the Trump administration reallocating military funds to build the president’s long-promised border wall.
The court agreeing to rehear the cases signals its understanding of the heavy implications that hang in the balance.
The White House has long argued in both cases that the Constitution does not allow the House to sue to enforce congressional authority over the executive branch.
House attorney Megan Barbero argued that no one wants Congress to have to fall back on arresting “recalcitrant officials” who fail to respond to subpoenas, or shutting down the government to settle funding disputes.
“The courthouse doors should not be uniquely closed to congressional plaintiffs after 50 years,” Barbero said.
But the Justice Department sent the court a message that, while laden with statutory analysis and urbane vocabulary, rang loud and clear: Stay out.
“Judicial intervention in this political tug of war risks damaging public confidence in the impartiality of this circuit,” Justice Department attorney Hashim Mooppan warned.
Falling back repeatedly on the argument that the separation of powers checks political ambition, Mooppan stressed that the House has “ample tools” like legislation and impeachment to carry out oversight.
With a Republican-controlled Senate, the first option sits beyond any possibility for redress. As for the latter, House attorney Douglas Letter had simple words to counter. “Been there, done that,” he said.
As the majority Democrat-appointed panel grappled with the issue of absolute immunity for presidential advisers, U.S Circuit Judge Thomas Griffith, a George W. Bush appointee, questioned whether the court was dealing with an administration operating outside Washington norms.
“How is Congress to conduct its constitutional duty of oversight in the face of the type of utter disregard this administration has shown for that oversight?” Griffith asked. “Hasn’t this administration eschewed the traditional norms of compromise and negotiation that you rely upon in your argument so heavily?”
When Mooppan denied the Trump administration had unilaterally defied subpoenas, Griffith shot back: “I’m sorry. I thought there was an across-the-board directive to not cooperate.”
During the impeachment probe, Mooppan countered, the president had directed executive branch officials to not comply with “categorically improper” subpoenas. Republicans had claimed the subpoenas were invalid because Democrats issued them prior to the House vote to launch the investigation into Trump’s alleged misconduct involving Ukraine.
“But there was never a blanket edict,” the Justice Department attorney claimed.
Carrying Griffith’s line of questioning, U.S. Circuit Judge Patricia Millett asked Mooppan to state his position clearly, once again.
“You think the House can never come to court to enforce a subpoena, full stop?” the Barack Obama appointee asked.
The Justice Department attorney replied in the affirmative.
“The power to sue to enforce the law is invested in the executive, not the legislature,” he explained.