Court Ruling Protects Absolute Presidential Immunity from Congressional Investigation

The New York Times reports that an appeals court ruling holds that congress cannot sue to force executive branch officials to testify about anything. This ruling appears to provide absolute presidential immunity from any congressional investigation or inquiry. If that is the correct interpretation, and I hope it isn't, congress has no power to force any executive branch employee to answer any questions about anything. If that is the correct interpretation of this case, it constitutes a massive shift in power from congress to the executive branch.

None of the three judges on the case were appointed by the president. The full ruling is here.

The NYT writes:

“WASHINGTON — A federal appeals court ruled on Friday that Congress could not sue to enforce its subpoenas of executive branch officials, handing a major victory to President Trump and dealing a severe blow to the power of Congress to conduct oversight. 

In a ruling that could have far-reaching consequences for executive branch secrecy powers long after Mr. Trump leaves office, a divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed a lawsuit brought by the House Judiciary Committee against Mr. Trump’s former White House counsel, Donald F. McGahn II.  

But two of the three appeals court judges ruled on Friday that the Constitution gave the House no standing to file any such lawsuit in what they characterized as a political dispute with the executive branch. If their decision stands, its reasoning would shut the door to judicial recourse whenever a president directs a subordinate not to cooperate with congressional oversight investigations.   

Judge Griffith said that Congress had political tools to induce presidents to negotiate and compromise in disputes over oversight demands for information about the government — like withholding appropriations or derailing the president’s legislative agenda — and that courts should not be involved. 

‘The absence of a judicial remedy doesn’t render Congress powerless,’ he wrote, adding, ‘Congress can wield these political weapons without dragging judges into the fray.’” 

The dissenting judge, Judith W. Rogers, wrote this in her dissent:

“Today the court reaches the extraordinary conclusion that the House of Representatives, in the exercise of its “sole Power of Impeachment,” U.S. CONST. art. I, § 2, cl. 5, lacks standing under Article III of the Constitution to seek judicial enforcement of a subpoena in connection with an investigation into whether to impeach the President. The House comes to the court in light of the President’s blanket and unprecedented order that no member of the Executive Branch shall comply with the subpoena duly issued by an authorized House Committee. Exercising jurisdiction over the Committee’s case is not an instance of judicial encroachment on the prerogatives of another Branch, because subpoena enforcement is a traditional and commonplace function of the federal courts. The court removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties. I respectfully dissent.” (emphasis added)

This country is in very deep trouble. The imperial presidency, above the law and unaccountable to congress, is rising before our very eyes. Our government is badly broken. It has ceased to function in anything other than broken ways.