Donald Trump faces test of power in court clash

Bloomberg

The Trump administration will square off against House Democrats on Tuesday over a crucial question: Is a congressional subpoena of White House officials a formidable weapon or an empty threat?
The battle, which is likely to reach the Supreme Court, could shape legal fights ranging from the quest for President Donald Trump’s tax returns to a conflict over his proposed border wall with Mexico. More broadly, it will help determine the extent of his and future presidents’ power.
The case, in federal appeals court in Washington, stems from the Democrats’ subpoena of former White House counsel Donald McGahn. The demand for his testimony came in the wake of Special Counsel Robert Mueller’s probe into Russian interference with the 2016 US election and in the run-up to last year’s impeachment hearings.
But while those struggles ended in the president’s acquittal and now seem a world away, Tuesday’s court clash goes far beyond them.
The dispute “hits at the core of the constitutional separation of powers,” said Richard Pildes, a constitutional law professor at New York University. “When high-level executive officials refuse to comply with a congressional subpoena, this case will determine whether Congress can turn to the courts to resolve that conflict.”
The Supreme Court has scheduled a May 12 hearing on Trump appeals that raise sweeping questions about government’s investigative powers, including the president’s claim of immunity from local criminal probes while in office. That case, in which the Manhattan district attorney is seeking the president’s financial records, “is probably more of a threat to President Trump personally,” Pildes said. The McGahn case is important because it will affect the continuing struggle between the legislative and executive branches, he said.
It began in August when the House Judiciary Committee sued after Trump directed McGahn not to comply with the subpoena. The Justice Department argued that as an immediate adviser to the president, he was “absolutely immune from compelled testimony before Congress.”
In November, US District Judge Ketanji Brown Jackson in Washington ordered the lawyer to appear. Jackson, an appointee of President Barack Obama, said “compulsory appearance by dint of a subpoena is a legal construct, not a political one.”
The administration appealed Jackson’s decision, and a three-judge panel of the DC appeals court ruled in Trump’s favour in February. It narrowed the instances when the judiciary can resolve disputes between Congress and the executive, requiring that a member of the public, and not just part of the government, suffer some harm. Otherwise, the panel wrote, those two branches would be “swallowed up” by the courts.
Now, a larger panel of the appeals court’s judges will hold a rare “en banc” rehearing of the whole case (rarer still because it will be held by phone). The court has consolidated the McGahn case with a House lawsuit challenging Trump’s diversion of military funds to the border wall, another of the many clashes that have erupted between the two branches.
The composition of the court doesn’t bode well for the president. Seven of its active judges were appointed by Democratic presidents. The four named to the bench by Republicans include two appointed by Trump himself, Neomi Rao and Gregory Katsas. Both have recused themselves, without saying why.
The Judiciary Committee has urged the judges to uphold the district court’s decision compelling McGahn to appear
and disputed the three-judge panel’s finding that the judicial branch has no business stepping into the case. Congress has other recourse if an administration refuses to cooperate with an investigation, the Trump team contends, such as declaring it in contempt or blocking funding for the White House.