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Mon Aug 31, 2020, 02:10 PM

In 'Stunning' 2-1 Decision, Appeals Court Says Congress Can't Enforce Subpoena Against Ex-WH Counsel

Source: Law & Crime

A federal appeals court in Washington, D.C. on Monday ruled that the U.S. House of Representatives does not have any legal authority to enforce a subpoena against former White House counsel Don McGahn. In a 2-1 decision penned by Judge Thomas B. Griffith, a George W. Bush appointee, the court reasoned that the Constitution does not grant a congressional committee the power to enforce its own subpoenas, dismissing the case in favor of McGahn.

“Congress has no implied constitutional power to seek civil enforcement of its subpoenas. The Committee thus cannot identify an underlying judicial remedy that could authorize it to invoke the Declaratory Judgment Act,” Griffith wrote. “Because the Committee lacks a cause of action to enforce its subpoena, this lawsuit must be dismissed.”

Judge Griffith stated, however, that while the committee does not currently have such enforcement power, that could be rectified if Congress passed a law granting such authority.

“We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit,” he wrote. “If Congress (rather than a single committee in a single chamber thereof) determines that its current mechanisms leave it unable to adequately enforce its subpoenas, it remains free to enact a statute that makes the House’s requests for information judicially enforceable. Indeed, Congress has passed similar statutes before, authorizing criminal enforcement in 1857 and civil enforcement for the Senate in 1978.”


Read more: https://lawandcrime.com/high-profile/in-stunning-2-1-decision-appeals-court-says-congress-cant-enforce-subpoena-against-ex-wh-counsel-don-mcgahn/

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Reply In 'Stunning' 2-1 Decision, Appeals Court Says Congress Can't Enforce Subpoena Against Ex-WH Counsel (Original post)
Calista241 Aug 31 OP
Miguelito Loveless Aug 31 #1
CatWoman Aug 31 #2
ArizonaLib Aug 31 #6
maxsolomon Aug 31 #9
ArizonaLib Aug 31 #14
liberalgunwilltravel Aug 31 #16
groundloop Aug 31 #20
JohnQFunk Aug 31 #24
maxsolomon Aug 31 #28
DeminPennswoods Aug 31 #38
maxsolomon Sep 1 #41
CatWoman Aug 31 #17
ArizonaLib Aug 31 #18
former9thward Aug 31 #26
ArizonaLib Aug 31 #27
former9thward Aug 31 #34
ArizonaLib Aug 31 #40
onenote Aug 31 #37
ArizonaLib Aug 31 #15
groundloop Aug 31 #21
onenote Aug 31 #39
sl8 Aug 31 #23
DallasNE Aug 31 #33
Miguelito Loveless Aug 31 #36
Thomas Hurt Aug 31 #3
scipan Sep 1 #42
maxsolomon Aug 31 #4
C_U_L8R Aug 31 #5
Firestorm49 Aug 31 #13
LiberalLovinLug Aug 31 #7
maxsolomon Aug 31 #8
theaocp Aug 31 #10
GeorgeGist Aug 31 #11
DallasNE Aug 31 #12
yonder Aug 31 #31
former9thward Aug 31 #35
hatrack Aug 31 #19
ananda Aug 31 #22
sinkingfeeling Aug 31 #25
Yeehah Aug 31 #32
ancianita Aug 31 #29
Grasswire2 Aug 31 #30

Response to Calista241 (Original post)

Mon Aug 31, 2020, 02:12 PM

1. Isn't this the same three judge panel

That said the DoJ can dismiss Flynn''s guilty please, only to be overturned by the full court?

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Response to Miguelito Loveless (Reply #1)

Mon Aug 31, 2020, 02:15 PM

2. i think it is

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Response to CatWoman (Reply #2)

Mon Aug 31, 2020, 02:23 PM

6. It took a while to return to the full court

With this, they managed to punt any action resulting from a possible overturn from the full court so that compliance with congress's subpoena(s) could be too late to make a difference in the election. I think when Dems take the senate there will be some reforms to reduce such delay tactics. These delays handicap Congress's oversight duty.

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Response to ArizonaLib (Reply #6)

Mon Aug 31, 2020, 02:35 PM

9. Unless they take 2/3 they'd have to overcome the Filibuster.

McConnell (I'm assuming he wins and becomes Minority Leader) would never allow such a measure to come to the floor.

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Response to maxsolomon (Reply #9)

Mon Aug 31, 2020, 02:45 PM

14. If the Dems also have the white house, McConnell may be more tempted to allow it

Also, the Dems are usually the ones who take executive oversight more seriously. They may change the filibuster rules to fix things. The nuclear option is always a viable option when McConnell wants something badly. Nancy will figure out what she needs to do if this is necessary to enable proper executive oversight.

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Response to maxsolomon (Reply #9)

Mon Aug 31, 2020, 02:50 PM

16. filibuster will be dead

I suspect that if the Democrats take the Senate with less than a 60 vote majority that the filibuster will cease to exist or at least be greatly diminished. The Democrats are done allowing a minority stymie the will of a vast majority.

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Response to liberalgunwilltravel (Reply #16)

Mon Aug 31, 2020, 03:05 PM

20. And I strongly believe killing the filibuster will be a watershed moment for Democrats

Popular agenda will become law, people will have better healthcare, lower income people will have at least a livable wage, elections will become more fair which will mean Democrats will win more often. GOPers will have to pivot left or face extinction. I truly believe the nuclear option will be good for the country and good for the Democratic Party.

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Response to maxsolomon (Reply #9)

Mon Aug 31, 2020, 03:21 PM

24. Not if MAJORITY Leader Schumer bans ALL filibusters for 1772 days.

ALL FILIBUSTERS - not just judicial nominees but legislation. Along with ALL "blue slips", ALL stalling and obstruction "privileges".

That is by the way the number of days between President Obama's nomination of Merrick Garland and Joe Biden taking the Presidential oath of office.

NO FILIBUSTERS for the NEXT 1772 days of Democratic control of Congress.

On the 1773rd say, the Democratic majority will be open to negotiating filibuster rules - and saying, "No, we like a filibuster-free Senate. Bite me."

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Response to JohnQFunk (Reply #24)

Mon Aug 31, 2020, 04:50 PM

28. I think it can only be in 2-year stints but OK.

Be careful what you wish for in a nation full of white people that could easily put the GOP back in charge if you hurt their feewings.

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Response to maxsolomon (Reply #28)

Mon Aug 31, 2020, 08:54 PM

38. Dems are the only ones hurt by the filibuster

Rs would eliminate it in a heartbeat if it helped their cause.

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Response to DeminPennswoods (Reply #38)

Tue Sep 1, 2020, 11:17 AM

41. it would have been a disaster in 2017-2018.

It kept the worst ideas of the Trump/GOP House from ever coming to pass. They only got the tax cut the same way we got the ACA: through Reconciliation.

It stops progress from happening, but it also stops regress from happening. To a degree.

The Senate is the House of Lords, and it's job is to put its knee on the neck of change.

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Response to ArizonaLib (Reply #6)

Mon Aug 31, 2020, 02:51 PM

17. well, that full court just kicked Flynn in the nuts

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Response to CatWoman (Reply #17)

Mon Aug 31, 2020, 02:57 PM

18. Yes! I am thinking it will do the same with this

I just hope they can turn it around quicker.

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Response to ArizonaLib (Reply #6)

Mon Aug 31, 2020, 03:33 PM

26. The courts are an independent branch of government.

Congress can't tell them what to do.

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Response to former9thward (Reply #26)

Mon Aug 31, 2020, 04:31 PM

27. Congress regulates the judicial branch and can pass laws that limit the scope of SCOTUS

Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the United States Supreme Court. For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional.

"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Congress can regulate the supreme court.

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Response to ArizonaLib (Reply #27)

Mon Aug 31, 2020, 06:15 PM

34. None of which applies to the subject at hand.

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Response to former9thward (Reply #34)

Mon Aug 31, 2020, 09:41 PM

40. I am not sure what you mean by that

Vote for Biden/Harris

Good luck to you!

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Response to CatWoman (Reply #2)

Mon Aug 31, 2020, 08:53 PM

37. No. One judge in common out of three

The Flynn panel was Rao, Henderson and Wilkins

This panel was Henderson, Griffith and Rogers.

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Response to Miguelito Loveless (Reply #1)

Mon Aug 31, 2020, 02:49 PM

15. I wonder how much of this is those 2 conservative judges auditioning for SCOTUS

Conservatives are rabidly hoping one of the older SCOTUS liberals has to be replaced by January.

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Response to ArizonaLib (Reply #15)

Mon Aug 31, 2020, 03:06 PM

21. Oh, but the Senate can't vote on Supreme Court nominees in an election year.....

Oh wait-that's only when it suits McConnell'a purposes.

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Response to ArizonaLib (Reply #15)

Mon Aug 31, 2020, 08:55 PM

39. Not these two. Both are nearing retirement.

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Response to Miguelito Loveless (Reply #1)

Mon Aug 31, 2020, 03:12 PM

23. No, this case was before Judges Henderson, Rogers, and Griffith.

On edit:
The Flynn case was heard by Judges Henderson, Wilkins, and Rao.

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Response to Miguelito Loveless (Reply #1)

Mon Aug 31, 2020, 05:34 PM

33. While The Same Court

The 3 judges representing the court rotate.

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Response to DallasNE (Reply #33)

Mon Aug 31, 2020, 07:07 PM

36. Thanks.

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 02:16 PM

3. hmmm, so, there is a statute that says House and Senate have subpoena power?

If you can't enforce a subpoena in federal court isn't that saying there is no subpoena power?

They just turned subpoenas into "assertively asking".

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Response to Thomas Hurt (Reply #3)

Tue Sep 1, 2020, 02:39 PM

42. Nail meet head.

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 02:17 PM

4. Translation: A Congressional Subpoena is utterly toothless and can be ignored with impunity.

The House of Representatives is exposed as the weak sister of the Federal Government.

I think we'd better get the Supremes to rule on this one. Just to confirm that the Constitution is now a complete joke.

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 02:20 PM

5. They still wield the power of money.

If they can't subpoena (for now), they should cut the Trump budget and payroll to zero until they cooperate.

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Response to C_U_L8R (Reply #5)

Mon Aug 31, 2020, 02:44 PM

13. Damn right. I wish they would do something - anything!

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 02:27 PM

7. So get on it immediately!

“We note that this decision does not preclude Congress (or one of its chambers) from ever enforcing a subpoena in federal court; it simply precludes it from doing so without first enacting a statute authorizing such a suit,”


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Response to LiberalLovinLug (Reply #7)

Mon Aug 31, 2020, 02:34 PM

8. Passed by the Senate and signed by the President.

In other words, a non-starter.

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 02:41 PM

10. Well, that kind of speaks volumes.

Social studies curriculum is going to take an interesting course through all this destruction.

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 02:42 PM

11. This 'Constitution' of ours is looking weaker every day ...

that Republicans are in power.

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 02:43 PM

12. That Is Stunning

I would think that Congress would have an implied constitutional power to seek civil enforcement deriving from its power to issue the subpoena in the first place. This ruling means that a congressional subpoena is not worth the paper it is written upon.

I think it is also noteworthy that the Judge does not cite case law to support this decision and that alone places it on shaky ground.

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Response to DallasNE (Reply #12)

Mon Aug 31, 2020, 05:11 PM

31. +1.

I think it is also noteworthy that the Judge does not cite case law to support this decision and that alone places it on shaky ground.

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Response to DallasNE (Reply #12)

Mon Aug 31, 2020, 06:28 PM

35. Did you read the opinion?

You may not agree with the case law cited but the appeals court did cite plenty of it. This is the opinion in case you wish to read it.

https://www.cadc.uscourts.gov/internet/opinions.nsf/6402FB14D0F73EDD852585D5005DA953/$file/19-5331-1859039.pdf

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 03:00 PM

19. *COUGH* En Banc *COUGH*

.

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 03:09 PM

22. Seriously?

Where does it say that the committee can't enforce
its own subpoena?

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 03:25 PM

25. I need to check the Constitution. Is the judiciary branch granted

explicit authority to enforce judges' subpoenas?

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Response to sinkingfeeling (Reply #25)

Mon Aug 31, 2020, 05:15 PM

32. Excellent point

In fact, the Constitution does not expressly grant the power of judicial review.

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 05:07 PM

29. A major jurisdictional blunder that will lead 2 the judiciary's erosion if the WH occupant survives

the general election.

Subpoena's a judicial branch tool that the judicial branch shouldn't deny to the legislative branch's constitutional power of oversight. This is a hobbling of the balance of power, an undue burden on the people's branch, and the appeals court must know this.

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Response to Calista241 (Original post)

Mon Aug 31, 2020, 05:10 PM

30. kick nt

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