This is another nail in democracy's coffin......

Court of Appeals decision amounts to a constitutional earthquake

Opinion by Elie Honig

Friday's Court of Appeals decision permitting former White House counsel Don McGahn to ignore a congressional subpoena is a constitutional earthquake. If the ruling -- by two judges, with a third dissenting -- stands, the McGahn decision will fundamentally shift the ground beneath our system of checks and balances. It will tilt the legal terrain against Congress in favor of not just the Trump administration (for now), but the presidency itself.

The fact that McGahn -- according to special counsel Robert Mueller, a direct witness to acts that met the requirements to bring obstruction charges against President Donald Trump -- will not testify is actually the less important story here. (Trump has denied any wrongdoing.) As a refresher: in 2017, Trump asked McGahn to have Mueller fired, and then later asked McGahn to lie and deny that Trump had made the previous request of him. Any non-president would have been indicted for this conduct. Seems like a relevant point for Congress to investigate, but alas, the United States Court of Appeals for the District of Columbia Circuit has let McGahn and the White House off the hook (again: for now, at least).

The even bigger story here is that the McGahn ruling essentially guts Congress's ability to conduct oversight of the executive branch, now and in the future. After the Mueller report came out, the House Judiciary Committee subpoenaed McGahn for his testimony. The White House, however, invoked a doctrine of "absolute immunity," claiming that it had the absolute right to instruct executive branch officials to simply ignore any congressional subpoena, anytime, for any reason.

A federal district court judge promptly gave the White House's absolute immunity claim the legal smackdown it deserved. The judge ruled that McGahn must comply with the subpoena, and dismissed the White House's argument as "a fiction" that gets the concept of constitutional separation of powers "exactly backwards." The judge noted, "Presidents are not kings. "

In overturning the district court judge, the Court of Appeals actually did not so much rule as cop out. The Court of Appeals did not even consider whether this notion of "absolute immunity" holds any legal legitimacy. Instead, the Court of Appeals whimpers that the case "asks us to settle a dispute that we have no authority to resolve," and huffs that the dispute is "unfit for judicial resolution." Translation: Congress and the White House, you can duke this out, and we'll just stay over here, out of harm's way.

Let's be clear about what this case means, if it stands: Congress no longer holds any meaningful subpoena power towards the executive branch. Anytime the White House (or the Justice Department, or the State Department, or any other executive branch agency) receives a subpoena from Congress, the executive branch agency can laugh, put the subpoena in a shredder, and toss the tiny pieces into the garbage. And the courts, following the lead of the McGahn Court of Appeals, will shrug and say, "Hey, nothing we can do."

So, what happens next? Rep. Jerry Nadler has already stated that the House will seek "en banc" review, in which the entire Court of Appeals -- all 17 judges -- can hear the case and issue a new ruling. En banc review is rare, but it could be in play here, given the stakes.

When the Court of Appeals is done, then the losing party almost certainly will appeal to the Supreme Court, which requires a vote of four of the nine Justices to take on a case (to "grant certiorari," in the lingo). If the Supreme Court declines to take the case, then the court of appeals decision stands -- currently in favor of the White House. If the Supreme Court does take the case, then we could be headed towards a close decision, potentially a 5-4 ruling with the four liberal justices favoring Congress, the four conservatives voting for the White House, and the conservative-leaning (but somewhat unpredictable) Chief Justice John Roberts as the swing vote.

The implications of Friday's decision go beyond Trump, or Jerry Nadler, or Don McGahn. If the ruling stands, it will fundamentally change our government, placing the president and his administration beyond the reach of congressional oversight. As the district court judge noted, in our system, presidents are not -- or at least, shouldn't be -- kings. But the McGahn decision, if it stands, offers up a crown on a pillow not just to Trump, but to future presidents of either party.