Absolute Immunity
McGahn Case
Major Issue: Whether a House committee may compel a former White House counsel to testify before Congress, or whether senior-level presidential aides are absolutely immune to Congressional testimonial subpoenas.
Case Status: Awaiting second en banc decision by the D.C. Circuit.
Case Description: On August 7, 2019, the House Judiciary Committee filed suit in D.C. federal district court to enforce a subpoena requiring former White House counsel Donald McGahn to provide testimony to Congress. Mr. McGahn, represented by the Department of Justice (“DOJ”), opposed the suit.
Procedural Posture: D.C. District Judge Ketanji Brown Jackson was assigned to the case. On Nov. 25, 2019, the district court ordered Mr. McGahn to comply with the congressional subpoena. On Nov. 27, 2019, Mr. McGahn, through DOJ, filed motions to stay the district court’s ruling. On Dec. 2, 2019, the district court denied the request for a stay, but on Nov. 27, the appeals court granted the stay pending review of the case. On Feb. 28, 2020, an appellate panel ruled 2-1 that Congress lacked standing to bring the lawsuit and ordered the case dismissed. On March 13, 2020, the D.C. Circuit vacated the panel’s opinion and ordered a rehearing en banc. On Aug. 7, 2020, in a 7-2 en banc decision, the D.C. Circuit reversed the appellate panel, found Congress had standing to bring the suit, and remanded the case to the appellate panel. On Aug. 31, 2020, in a 2-1 decision, the appellate panel ruled that the House had no cause of action and ordered dismissal of the case a second time. On Oct. 15, 2020, the D.C. Circuit vacated the panel’s opinion and granted a House request for a second en banc review of the case.
District Court Proceedings
After the filing of the complaint on Aug. 7, 2019, D.C. District Judge Ketanji Brown Jackson was assigned to Case No. 19-cv-2379. On Nov. 25, 2019, the district court upheld the House subpoena and ruled that senior-level presidential aides are not absolutely immune to Congressional testimonial subpoenas, but could assert privilege on a question-by-question basis. Comm. on the Judiciary, United States House of Representatives v. McGahn, 415 F. Supp. 3d 148 (D.D.C. 2019). On Dec. 2, 2019, the district court denied a request by Mr. McGahn, represented by DOJ, to stay the proceedings pending appeal. However, the D.C. Circuit Court of appeals issued a stay pending review of the case.
- 2019 House Judiciary Committee Complaint (8-7-2019) (54 pages)
- 2019 House motion for summary judgment (8-26-2019) (57 pages)
- 2019 McGahn motion for summary judgment (10-1-2019) (83 pages)
- 2019 McGahn withdraws accommodation defense (10-30-2019) (3 pages)
- 2019 District Court Opinion upholding subpoena (11-25-2019) (120 pages)
- Key Excerpts from District Court Opinion upholding subpoena (9 pages)
- 2019 McGahn motion for stay pending appeal (11-26-2019) (10 pages)
- 2019 House memo opposing stay pending appeal (11-26-2019) (9 pages)
- 2019 District Court Opinion denying stay pending appeal (12-2-2019) (17 pages)
- Key Excerpts from District Court Opinion denying stay (4 pages)
Appeals Court Proceedings
On Nov. 27, 2019, Mr. McGahn, through DOJ, filed an appeal with the D.C. Circuit Court of Appeals and requested an emergency stay of the district court’s order. A three-judge panel, with Judges Griffith, Henderson, and Rogers, was assigned to Case No. 19-5331. On Nov. 27, 2019, the panel granted a stay of the district court’s order pending review of the case. On Jan. 3, 2020, the panel heard oral argument. On Feb. 28, 2020, the appellate panel, in a 2-1 ruling, found Congress had no standing to bring the lawsuit and ordered the case dismissed. Judge Griffith wrote the main opinion, Judge Henderson filed a concurrence, and Judge Rogers dissented. Comm. on the Judiciary, United States House of Representatives v. McGahn, 951 F.3d 510 (D.C. Cir. 2020).
On March 6, 2020, the Judiciary Committee requested a rehearing by the entire appeals court. On March 13, 2020, the D.C. Circuit vacated the appellate panel’s opinion and ordered a rehearing en banc. On Aug. 7, 2020, in a 7-2 en banc decision, the D.C. Circuit reversed the appellate panel and found Congress had standing to bring the case. Comm. on the Judiciary, United States House of Representatives v. McGahn, 968 F.3d 755 (D.C. Cir. 2020)(en banc). Judge Rogers wrote the majority opinion, and Judges Griffith and Henderson filed dissents. The D.C. Circuit remanded the case to the appellate panel for further proceedings.
On Aug. 31, 2020, the same appellate panel ruled, in a 2-1 decision, that the House failed to state a cause of action and ordered the case dismissed a second time. Judge Griffith wrote the majority opinion, and Judge Rogers dissented. Comm. on the Judiciary, United States House of Representatives v. McGahn, 973 F.3d 121 (D.C. Cir. 2020). On Sept. 8, 2020, the House Judiciary Committee requested a second en banc rehearing. On Oct. 15, 2020, the D.C. Circuit vacated the appellate panel’s decision, ordered a second en banc review, and scheduled oral argument for Feb. 23, 2021.
- 2019 McGahn appeals motion for stay (11-27-2019) (29 pages)
- 2019 Appeals Court Order issuing stay (11-27-2019) (2 pages)
- 2019 McGahn brief supporting appeal (12-9-2019) (73 pages)
- 2019 House Judiciary brief opposing appeal (12-16-2019) (79 pages)
- 2019 Amicus brief supporting House-Republican leaders (12-16-2019) (44 pages)
- 2019 House Judiciary brief addressing impeachment issues (12-23-2019) (19 pages)
- 2019 McGahn appeals brief addressing impeachment issues (12-23-2019)(10 pages)
- 2020 House letter to Court re impeachment proceedings (1-23-2020)(2 pages)
- 2020 Appeals Court Opinion dismissing case (2-28-2020)(88 pages)
- Key Excerpts from 2020 Appeals Court opinion (27 pages)
- 2020 House petition requesting rehearing en banc (3-6-2020)(118 pages)
- 2020 Appeals Court opinion vacating opinion and ordering rehearing en banc (3/13/2020)(2 pages)
- 2020 McGahn supplemental brief for en banc hearing (3-30-2020)(37 pages)
- 2020 House Judiciary supplemental brief for en banc hearing (4-16-2020)(38)
- 2020 Amicus brief supporting House-former House general counsels (4-16-2020)(23 pages)
- 2020 Amicus brief supporting House-Levin Center & Lugar Center (4/16/2020)(28 pages)
- 2020 Amicus brief supporting House-former Members of Congress (4/16/2020)(33 pages)
- 2020 Amicus brief supporting House-former DOJ officials (4/16/2020)(26 pages)
- 2020 Amicus brief supporting House-25 law professors (4/16/2020)(31 pages)
- 2020 Amicus brief supporting House-Nixon impeachment scholars (4-16-2020)(26 pages)
- 2020 Amicus brief supporting House-Morton Rosenberg (4-16-2020)(25 pages)
- 2020 Amicus brief supporting House-Niskanen Center (4-16-2020)(23 pages)
- 2020 Appeals Court en banc opinion finding Congress has standing (8-7-2020)(66 pages)
- Key Excerpts from 2020 Appeals Court en banc opinion (25 pages)
- 2020 Appeals Court panel opinion dismissing case again (8-31-2020)(21 pages)
- 2020 House petition requesting second rehearing en banc (9-8-2020)(124 pages)
- 2020 Appeals Court order vacating opinion & granting second en banc review (10-15-2020)(3 pages)
- 2020 McGahn second en banc brief (11-16-2020)(87 pages)
- 2020 House second en banc brief (12-16-2020)(66 pages)
- 2020 Amicus brief supporting House-Lugar Center & Levin Center (12-21-2020)(35 pages)
- 2020 Amicus brief supporting House-former Members of Congress (12-23-2020)(27 pages)
- 2020 Amicus brief supporting House-former DOJ officials (12-23-2020)(26 pages)
- 2020 Amicus brief supporting House-former House general counsels (12-23-2020)(39 pages)
- 2020 Amicus brief supporting House-Niskanen Center (12-23-2020)(24 pages)
- 2020 Amicus brief supporting House-Morton Rosenberg (12-23-2020)(30 pages)
Supreme Court Proceedings
No proceedings to date.