A US appeals court on Tuesday heard oral arguments in a historic dispute between the Trump administration and the US House of Representatives over how much power Congress has to enforce subpoenas demanding testimony or documents.
Holding arguments by phone, the US Court of Appeals for the District of Columbia Circuit considered whether a House committee can sue to enforce a subpoena for testimony from former White House Counsel Donald McGahn.
Disputes between the political branches about their institutional prerogatives have occurred since the founding, but lawsuits between them are a novel and unsanctioned tactic, Hashim Mooppan, a Justice Department lawyer arguing for the Trump administration, told the court.
Judge Judith Rogers appeared skeptical of the notion that courts cannot intervene when the executive branch and Congress are at odds. "Are you of the view there can be no role for the courts in terms of preserving the separation of powers?" she asked Mooppan.
Rogers cast doubt on whether a US Supreme Court precedent from 1997 that the Justice Department heavily relies upon is as definitive as Mooppan has argued. The facts in the current cases are "materially different," she said. The 1997 case, Raines v. Byrd, said individual members of Congress could not challenge a federal law in court.
Judge David Tatel, referencing separate cases now at the Supreme Court concerning the House's effort to obtain President Donald Trump's financial records, questioned whether the Justice Department's arguments are consistent. The Justice Department has said Trump can sue to block a subpoena but the House cannot sue to enforce one.
A divided three-judge panel of the court ruled for Trump in February, saying the court had no place in settling the closely watched dispute between the executive and legislative branches of the US government.
The court said that nine of its 11 judges would reconsider that ruling.
Two judges who were appointed by Trump to the court, Neomi Rao and Gregory Katsas, are not participating, likely because both previously worked in the Trump administration.
The Democratic-led House Judiciary Committee has said the earlier 2-1 ruling upset the balance of powers created by the US Constitution.
The committee had sought testimony from McGahn, who left his post in October 2018, about Trump's efforts to impede former Special Counsel Robert Mueller's investigation that documented Russian interference in the 2016 US election.
McGahn declined to testify before the committee after the Trump administration advised him to defy the subpoena. The Justice Department, arguing for the Republican administration, has argued in court that senior presidential advisers are absolutely immune from being forced to testify to Congress about official acts and that courts lack jurisdiction to resolve such disputes.
The February decision, if embraced by the full D.C. Circuit, would significantly weaken Congress' investigatory powers, said Andrew Wright, a lawyer at K&L Gates who advises on congressional investigations.
If that happens, lawmakers may consider reviving "inherent contempt," a dormant, extrajudicial power to arrest, detain and fine that Congress has not used since the 1930s, Wright said.
The court is considering the McGahn case alongside another dispute between the House and the Trump administration.
In that case, the House sued over Trump's announcement that he would spend $8.1 billion for a wall on the US-Mexico border despite the fact Congress had appropriated only $1.375 billion. The case raises issues similar to the McGahn case, with a district court judge ruling that the House did not have standing to sue.