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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 3, 2020 Decided February 28, 2020 No. 19-5331 C

OMMITTEE ON THE

J

UDICIARY OF THE

U

NITED

S

TATES

H

OUSE OF

R

EPRESENTATIVES

, A

PPELLEE

v. D

ONALD

F.

M

C

G

AHN

,

II, A

PPELLANT

Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-02379)

Hashim M. Mooppan

, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were

Mark R. Freeman

,

Michael S. Raab

, and

Martin Totaro

, Attorneys.

Megan Barbero

, Associate General Counsel, U.S. House of Representatives, argued the cause for appellee. With her on the briefs were

Douglas N. Letter

, General Counsel,

Todd B. Tatelman

, Deputy General Counsel,

Josephine Morse

, Associate General Counsel,

Adam A. Grogg

and

William E. Havemann

, Assistant General Counsel,

Jonathan B. Schwartz

, Attorney, and

Annie L. Owens

.

USCA Case #19-5331 Document #1831001 Filed: 02/28/2020 Page 1 of 88

2

Steven A. Hirsch

,

Justin

Florence

,

Jamila G. Benkato

, and

Cameron O. Kistler

were on the brief for

amici curiae

Republican Legal Experts, et al. in support of plaintiff-appellee. Before: H

ENDERSON

, R

OGERS

, and G

RIFFITH

,

Circuit Judges

. Opinion for the Court filed by

Circuit Judge

G

RIFFITH

. Concurring opinion filed by

Circuit Judge

H

ENDERSON

. Dissenting opinion filed by

Circuit Judge

R

OGERS

. G

RIFFITH

,

Circuit Judge

: The Committee on the Judiciary of the House of Representatives ordered the former White House Counsel, Donald F. McGahn, II, to testify before the Committee. President Donald Trump instructed McGahn to refuse, asserting that certain presidential advisers possess “absolute testimonial immunity” from compelled congressional process. The Committee now seeks to invoke this court’s jurisdiction to enforce its subpoena. The Department of Justice (DOJ), on behalf of McGahn, responds that Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute. We agree and dismiss this case. I A In May 2017, the Deputy Attorney General appointed Special Counsel Robert Mueller to investigate whether President Trump’s campaign coordinated with the Russian government during the 2016 presidential election.

See

R

OBERT


3 S.

M

UELLER

,

III,

R

EPORT ON THE

I

NVESTIGATION INTO

R

USSIAN

I

NTERFERENCE IN THE

2016

P

RESIDENTIAL

E

LECTION

, vol. I, at 1-2 (2019). This investigation’s scope soon expanded when the President took several actions that “raised questions about whether he had obstructed justice.”

Id.

vol. II, at 1. As part of his investigation, the Special Counsel interviewed McGahn, who was then the White House Counsel. McGahn witnessed several of the President’s efforts to thwart the Special Counsel’s investigation, including the President’s aborted attempt to fire the Special Counsel.

Id.

vol. II, at 77-90, 113-20;

see also

Committee Br. 6 n.3. On March 4, 2019, pursuing leads developed by the Special Counsel, the Committee began an investigation into the President’s possible “obstruction of justice, public corruption, and other abuses of power.” J.A. 542. The Committee sent a letter asking McGahn to turn over certain White House documents relating to the President’s possible obstruction, but McGahn did not comply. On April 22, the Committee issued a duly authorized subpoena ordering McGahn to produce these documents and to testify before the Committee on May 21. On May 20, McGahn’s successor as White House Counsel, Pat A. Cipollone, informed the Committee that the President had “directed Mr. McGahn not to appear at the Committee’s scheduled hearing.” J.A. 304. Cipollone wrote that the DOJ’s Office of Legal Counsel (OLC) advised him that certain presidential aides, including McGahn, are “absolutely immune from compelled congressional testimony with respect to matters occurring during [their] service . . . to the President.”

J.A. 303. Cipollone enclosed the memorandum from OLC setting forth this theory of absolute testimonial immunity.

See Testimonial Immunity Before Congress of the Former Counsel to the President

,

43 Op. O.L.C. (May 20, 2019).
