On February 28, 2020, a three-judge Panel held—in an eighty-two page opinion that including a concurrence and a dissent—that the House Judiciary Committee could not maintain a subpoena-enforcement action seeking to coerce the attendance of former White House Counsel Donald McGahn before the Committee as part of its impeachment investigation.  The Committee issued the subpoena with the authorization of the full House of Representatives

The majority opinion held that Judicial Branch lacks authority under the separation-of-powers doctrine to coerce McGahn's appearance and, therefore, the House would have to rely on the tools it possesses under the Constitution to obtain the President's cooperation, such as holding McGahn in contempt of Congress, withholding appropriations, blocking the President's legislative agenda, or impeachment. The majority opinion noted that although there are a few cases in which the court has enforced a congressional subpoena in a criminal context, no case has enforced a congressional subpoena in aid of an impeachment investigation. The majority opinion stated that until this dispute the Executive Branch and Congress have settled disputes over requests for information through negotiation and compromise.  A dissenting opinion disagreed that the court lacks the authority to enforce the subpoena.  Because the majority opinion concluded that the courts lacked the authority to compel McGahn's appearance, the Panel did not reach McGahn's privilege claims including his claim of “absolute privilege.” 

          On March 13, 2020, the full court granted the Judiciary Committee's petition for en banc review.  The court ordered supplemental briefing to be completed by April 16, 2020 and scheduled oral argument for April 28, 2020.

Note: For a full discussion of the Panel's decision, see my blog post of March 12, 2020.