On Thursday, the full circuit vacated that decision and set arguments for Feb. 23. However, the court told both sides to address “whether the case would become moot when the Committee’s subpoena expires upon the conclusion of the 116th Congress” on Jan. 3.
The circuit did not release a vote but said a majority of nine eligible judges agreed with a House petition for the rehearing en banc. Judges Gregory Katsas and Neomi Rao, who previously served in Trump’s White House, did not participate.
At stake is the House’s oversight authority to compel executive-branch testimony. The House Judiciary Committee sought documents and testimony from McGahn related to special counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 election, including its report on whether the White House obstructed justice.
The House sued to enforce an April 22, 2019, request to McGahn to help determine whether Trump “committed impeachable offenses.” Trump directed McGahn not to cooperate.
The Judiciary Committee and the White House did not immediately respond to requests for comment.
The full court’s action echoed a similar sequence at an earlier stage in the litigation this year, when it reversed the same split three-judge panel’s reasoning on a different legal point.
In February, Judges Thomas Griffith and Karen Henderson ruled that the House’s lawsuit had to be dismissed because the Constitution did not give federal courts jurisdiction to hear such suits.
But on Aug. 7, the full circuit overturned that finding in a 7-to-2 decision written by Judge Judith W. Rogers, the dissenting vote in both three-judge panels. Rogers wrote then for the majority that the administration harmed the House’s long-standing authority to compel testimony from government officials, and that the court was simply preserving power the House was already understood to possess.
“Without the possibility of enforcement of a subpoena issued by a House of Congress, the Executive Branch faces little incentive to reach a negotiated agreement in an informational dispute,” Rogers wrote. “Indeed, the threat of a subpoena enforcement lawsuit may be an essential tool in keeping the Executive Branch at the negotiating table.”
Griffith, before his previously announced retirement this September, lamented that finding. He wrote in a dissent that replacing negotiation between Congress and the White House with litigation will make it “harder for Congress to secure the information it needs” and politicize the judiciary “by repeatedly forcing us to take sides between the branches.”
In their Aug. 31 decision, Griffith and Henderson said Congress had not provided the House with a cause of action to enforce its subpoenas through the courts, namely by authorizing such suits by passing legislation.
If McGahn’s subpoena expires, the next Congress elected next month and meeting in January could issue a new subpoena or enact relevant legislation.