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 en banc appellate opinion.

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.  The district court ruled for Congress, but an appeals court panel of three judges reversed and dismissed the case on the ground that Congress lacked standing to bring the lawsuit.  The D.C. Circuit Court of Appeals vacated the panel’s decision and ordered the case to be reheard en banc.

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 in both the district court and the D.C. Circuit Court of Appeals.  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 2/28/2020, the appeals court ruled in a 2-1 decision that Congress had no standing to bring the lawsuit and ordered the case to be dismissed.  On 3/6/2020, the House Judiciary Committee requested a rehearing by the entire appeals court.  On 3/13/2020, the D.C. Circuit vacated the panel’s opinion, ordered a rehearing en banc, and scheduled oral argument for 4/28/2020.

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.  Committee on the Judiciary, United States House of Representatives v McGahn, No. 19-2379 (KBJ), 2019 WL 6312011 (D.D.C. Nov. 25, 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.

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 issued a 2-1 ruling which found that Congress had no standing to bring the lawsuit and ordered the case to be dismissed.  Judge Griffith wrote the main opinion; Judge Henderson filed a concurrence, and Judge Rogers filed a dissent.  On 3/6/2020, the House Judiciary Committee requested a rehearing by the entire appeals court.  On 3/13/2020, the D.C. Circuit vacated the appellate panel’s opinion, ordered a rehearing en banc, and scheduled oral argument for 4/28/2020.

No proceedings to date.

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