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.

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.

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 to be dismissed.  Judge Griffith wrote the main opinion, Judge Henderson filed a concurrence, and Judge Rogers filed a dissent.  Comm. on the Judiciary, U.S. 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 (D.C. Cir. Aug. 7, 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.  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.

No proceedings to date.

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