The Justice Department offered an extremely narrow view of Congress' power to investigate the Executive Branch, prompting concern among judges that it could force Congress into extreme, blunt-force actions — like arresting people — to obtain information
Barring Congress from enforcing its subpoenas in court could push lawmakers toward arresting senior Trump administration officials or pursuing even more extreme measures, several appeals court judges suggested Tuesday.
“Issuing subpoenas — that's a prerogative of Congress. Enforcing subpoenas and enforcing laws — that’s a prerogative of the president,” Justice Department attorney Hashim Mooppan said. Most of the judges taking part in Tuesday’s arguments signaled early and often that they viewed DOJ’s stance with skepticism, repeatedly referencing the extreme notion of the House having to resort to arresting McGahn to get its questions answered or even a judicial resolution of Trump’s claims of executive privilege.
A decision by the courts seems increasingly unlikely to come in any definitive way on a timeline that would produce testimony from McGahn or other witnesses in advance of the November presidential election. Mooppan pleaded with the judges to steer clear of both fights. He accused the House of making a “radical break” with history by seeking to enmesh the judiciary in the interbranch battles.
House Democrats, who took power in 2019, quickly sought to secure McGahn’s testimony, but Trump directed him to refuse cooperation and McGahn deferred. The White House asserted that McGahn was “absolutely immune” to testifying, a position that seemed at odds with an earlier court rulings requiring executive branch officials to appear before Congress and provide records that are not legally privileged.
“That is beyond the scope of Congress’ power,” the Justice Department lawyer said about the prospect of such an arrest. “Congress doesn’t have any express authority to go around arresting people…There is simply no historical support for the notion that they can arrest an executive branch official for following executive branch directives.
“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?” the George W. Bush appointee asked Mooppan. “Hasn’t this administration eschewed the traditional norms of compromise and negotiations that you rely on in your arguments so heavily?”
Trump appointee Greg Katsas, who served in the White House counsel’s office early in Trump’s term, indicated during his confirmation hearings that he would likely recuse from cases stemming from the Mueller probe. It’s less clear why the D.C. Circuit’s newest member, Judge Neomi Rao, stepped aside, but from 2017 to 2019 she held a top position at the Office of Management and Budget, which is part of the White House.
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